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Bench Memos

NRO’s home for judicial news and analysis.

Judge This



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Many thanks to Ed Whelan for posting excerpts from yesterday’s floor statements of Senators McConnell and Hatch on stalled judicial nominations.  And thanks to McConnell and Hatch for doing pulling back the curtain, and exposing Senate Democrats as wire-pulling frauds in the great tradition of Frank Morgan (“the great and powerful Wizard of Oz”).  Who would have thought that the Democrats were playing politics with our independent judiciary?   That they were making up the game’s rules as they played? 

But perhaps McConnell and Hatch the overstate the case.  It seems to me that Senate Democrats play the judicial appointment game by by two simple rules, which rules they scrupulously observe.  The first rule is that each judicial nomination is to be treated just like all the rest.  The second rule is that each judicial nomination is unique, and must be treated as a one-off phenomenon. Being the ones in charge, Democrats get to decide which rule applies to any given nominee.  They recognize no obligation to forthrightly justify their choice.

Judicial appointments were, of course, a huge issue in the last several presidential campaigns.  But not so far this year, for the obvious reason that the things which concern voters most — Iraq, the dollar, immigration, health care — depend very little for their resolution (and, in some cases, not at all) upon judges.  Even in the war on terror  judges play a secondary role, policing the boundaries of law enforcement and the treatment of detainees.   When voters cared more — and most — about crime, abortion, marriage,affirmative action, and church-state separation, they cared about judges.

Should we conclude that voters are really liberals when it comes to judges: all they care about is results?  Conservatives have always criticized the likes of Justices Brennan and Douglas on precisely those grounds.  All that Clinton and Obama say about judges is results-oriented: abortion-on-demand must be retained. Roe must survive.  It has been a while since we had a campaign like this one, a time in which the judiciary could be discussed without important results looming overhead.   John McCain has a rare opportunity, then, to make the case for sound constitutional construction and for the prompt and fair consideration of judicial nominees.  But first he will have to make the case that voters should care about that case.



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