The most reassuring news about the coming nomination of a new Supreme Court justice to succeed David Souter came in this morning’s Washington Post, which reported that Vice President Joe Biden is “regularly consulting with the president” and providing his “insights on the process.” As a longtime member and sometime chairman of the Senate Judiciary Committee, Biden was involved in more than three decades of hearings, and chaired the proceedings for six confirmations. He also made it painfully clear over the years that he is quite incapable of thinking of the Supreme Court in other-than-political terms, and is hopelessly at sea on fundamental questions of constitutional law. (If you consult the memoirs of Robert Bork and Clarence Thomas, you’ll also find he was ethically challenged too.) If the White House is taking his advice, it is mistaking his “experience” for wisdom. As a bonus, the Post has this circumlocution for Biden’s pattern of public gaffes: “his enthusiasm and plain-spoken candor are simultaneously his greatest political strengths and his greatest weaknesses.” So it’s “enthusiasm and plain-spoken candor,” is it? How about “devotion to scraping the empty barrel of his mind at the slightest provocation”?
Over on the op-ed page, meanwhile, the always fair-minded E.J. Dionne dares the Republicans to an “honest brawl” over the Supreme Court, confident that Democrats can trounce them. As far as I can tell, here are Dionne’s ground rules:
–Republicans aren’t allowed to talk about “judicial philosophy” without admitting that what they are really interested in is “ideology.”
–Democrats, on the other hand, are entitled to talk about judicial philosophy without having to defend their motives.
–No Republican “slogans” are allowed–”notably ‘judicial activism,’ ‘legislating from the bench,’ and ’strict constructionism.’”
–Oh, yes, Dionne suddenly remembers that practically no one uses that last one any more–so no talk of “originalism” either.
–Democrats, on the other hand, are entitled to point out that “judicial activism is far more the habit of conservative justices than liberals.”
–And Democrats are entitled to point out that Republican opposition to judicial activism started with “segregationists who opposed judicial interventionism on behalf of the rights of African Americans.”
–But Republicans are not permitted to point out that those segregationists were, to a man, Democrats.
Okay, everyone ready for a fair fight?