Bench Memos

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Confirmation And Judicial Philosophy


Thanks to Ramesh for his important correction of the media’s misrepresentation of Ken Starr’s views on filibuster reform. But I think that Mr. Starr’s stated view that senators should not “invok[e] judicial philosophy as a grounds for voting against a qualified nominee of integrity and experience” merits exploration. As a great admirer of Mr. Starr, I am in the uncomfortable position of finding myself in disagreement with him.

Let’s take Mr. Starr’s specific position that Senate Republicans rightly voted to confirm Justice Ginsburg and that it would have been wrong to vote against her based on her judicial philosophy. I am not going to dispute here that it was an acceptable course of conduct for Republicans, in an exercise of deference to the President, to confirm Justice Ginsburg. But I do want to suggest why I think that it would have been proper to vote against her based on her “judicial philosophy”.

There are lots of illegitimate judicial philosophies. One hypothetical nominee might believe, as a matter of “philosophy,” that the petitioner should always lose. Another might believe that the poorer party should always win. And still others, like Justice Ginsburg and other proponents of the phony “living Constitution,” might believe that the Constitution means whatever their moral and political intuitions tell them advances the cause of human progress. Surely everyone would agree that anyone who adheres to either of the first two views should not be confirmed. I likewise believe it proper (and perhaps compulsory, but I’ve promised to set aside that point now) for Senators to vote against anyone adhering to the Ginsburg view, which I believe is manifestly incompatible with the core tenets of our constitutional republic. (For a fuller explanation of my views, see my recent NRO essays here and here.)

The only justification that I can see for the view that senators shouldn’t look to judicial philosophy would be a practical one, premised on a judgment that senators can’t be trusted to distinguish legitimate judicial methodologies from illegitimate ones. The irresponsible attacks of Senate Democrats on President Bush’s judicial nominees obviously provide substantial support for such a judgment.


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