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Bench Memos

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Interesting Cornyn Questions



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So Sen. Cornyn says: “[W]ith Owen’s confirmation, it should now be settled that disagreement over judicial philosophy is not an ‘extraordinary circumstance’ — and, thus, no justification for a filibuster. Call it the ‘Owen standard.’ Senators should vote their conscience, but debates over judicial philosophy and disagreements about past rulings are no grounds for violating Senate tradition by imposing a supermajority voting requirement for confirming judges.” I happen to agree with him on that. But judging from my mail and some previous exchanges on the Corner, I suspect a number of my colleagues don’t.

So let’s say, just for argument’s sake, that it’s 2009, there’s an opening on SCOTUS, and a Democratic POTUS nominates a liberal who has stellar academic and professional credentials, no personal problems that would warrant opposition, and who believes: Roe is good constitutional law, the right to privacy is expansive enough to impose gay marriage judicially, the death penalty is unconstitutional, foreign law should be a guide to interpreting the U.S. constitution, etc.

Three questions arise: (1) Although I suspect there is consensus that this would be an adequate basis to justify voting against confirmation, do people disagree with that? (2) Are these facts enough to justify a filibuster? (3) If your answer to the second question is “yes,” would your answer be the same if the Democrats had not filibustered nominees for the past four years?



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