Bench Memos

NRO’s home for judicial news and analysis.

Breyer, Bork, and Senatorial Deference


During the hearings and debates on Justice Alito’s nomination, numerous Senate Republicans boasted proudly that when Bill Clinton was president, they voted for his nominees, Ruth Bader Ginsburg and Stephen Breyer. Perhaps this was an argument “good for this day and train only,” intended to put Democrats on the spot and to exact some deference from them for the president’s “right” to put qualified justices of his choosing on the Court because he won the last election. But of course there is no such right, and no principle that commands deference to the president’s choices once some minimal standard of “qualified” is passed. On this and little else, Sen. Charles Schumer and I have been in accord from the start of the recent confirmation battles.

One hopes that the GOP senators didn’t really mean that about their past votes for Ginsburg and Breyer, and if they don’t get what they willingly colluded in, they should check out Robert Bork’s review over at The New Criterion of Justice Breyer’s book Active Liberty. Now I haven’t gotten around to reading Breyer’s very short little book myself yet, but from what I know of his opinions from the bench, it seems to me that Bork almost certainly has his number. So what conservative could pat himself on the back for casting a vote to confirm him?


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