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Bench Memos

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Unpopular Answers?



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I might surprise you, Andy, with some of my answers. First, I don’t think that simple disagreement on constitutional doctrine is a good reason to vote against a nominee to the Supreme Court. The Constitution provides for presidential nomination of judges and justices in the same clause that provides for nominations of ambassadors and other officials, and I believe substantial deference is due to all such nominations, provided there are not questions of character or fitness that would make one unsuited for the job. This means that if a Democratic president nominates highly qualified liberals, the Senate should confirm them. So, in my mind, the Senate was right to confirm Justices Breyer and Ginsburg, even though I believe both are profoundly mistaken in their approach to constitutional interpretation and many other legal questions. Does this mean anyone is fair game? I’m not sure. But I am skeptical that a president would nominate someone to the Supreme Court that is so far afield. President Bush is not likely to nominate my friends Richard Epstein or Randy Barnett, and I doubt a Democratic president would seriously consider appointing a Cass Sunstein or Mark Tushnet. (Of course, if all Senators had my view about the inappropriateness of imposing ideological litmus tests on judges, maybe such nominations would be more likely . . . ).

As for the filibuster, I believe it should never be used to block confirmation of a judicial nominee, period. It is one thing to use the filibuster for its traditional purpose of extending debate–perhaps under the theory that a longer debate will cause some Senators to turn against a truly controversial nominee–but I think the use of the filibuster for judicial nominees is wrong, and contrary to the constitutional design, even if I don’t



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