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Bench Memos

NRO’s home for judicial news and analysis.

What “Battle Cry”?



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The Washington Post has a house editorial today expressing hope for “rationality and fair-mindedness” on judicial nominations.  To its credit, the Post’s editorial page was generally sensible and responsible on President Bush’s judicial nominations.  In the same spirit, the Post faults Senate Democrats for having “at times engaged in unjustified filibusters and gross distortions of some nominees’ records”, and it reiterates its belief that Democrats were wrong to obstruct confirmation of Miguel Estrada and Peter Keisler to the D.C. Circuit.  At the same time, the Post faults President Bush for being “slow to name candidates to long-vacant seats” and for “tapp[ing] hard-right nominees he knew had little chance of confirmation.”  There’s certainly some merit to the first charge.  The second seems boilerplate and is difficult to assess without knowing whom the Post has in mind.

One oddity of the editorial is that it claims that conservatives who “threaten to block ‘extreme’ appointments” by President Obama “have all but abandoned their battle cry of the past eight years that the president is entitled to judges who reflect his ‘judicial philosophy.’”  I guess I missed that “battle cry”.  I think that the dominant substantive message from conservatives over the past eight years is that nominees dedicated to judicial restraint should be confirmed—not because that was President Bush’s judicial philosophy but because it’s the judicial philosophy compatible with the system of representative government that our Constitution creates.  That substantive message has been in turn combined with the procedural “battle cry” of “every nominee deserves an up-or-down vote”—a message that is very different from the battle cry that the Post invents.

To be sure, there have been some voices relying heavily on the principle of deference to the president.  Those voices include the Post itself (as in its editorial “Confirm Samuel Alito”) and a number of Republican senators unwilling to engage in the battle over judicial philosophy.  But that hasn’t been the “battle cry” of conservatives generally.  And conservatives, consistent with “rationality and fair-mindedness”, ought to continue to fight for—and against—judicial nominees based on their judicial philosophy.


Tags: Whelan


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