Bench Memos

Confirming Based on Ideology Led to Mediocrity

University of Minnesota law professor (and former Thomas clerk) David Stras had a good Star Tribune op-ed on the underlying causes of the current confirmation mess. He writes:

Something is seriously wrong when neither liberals nor conservatives can embrace a Supreme Court nominee, especially one who was chosen in part on a diversity rationale. How did we reach this point? To my conservative and liberal colleagues alike I say that the blame cannot be put solely on the shoulders of George W. Bush.

It is true that the president nominated two relatively unknown “stealth” candidates to the Supreme Court in Harriet Miers and John Roberts. Together, they have approximately two years of judicial experience between them, yet they will be making the law of the land for the next 20.

Bush’s choices were entirely predictable because ideology has become in many cases the primary, if not the only, barometer of whether a justice is fit to serve.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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