Bench Memos

Mr. Franck’s Neigborhood

When Matt Franck says he prefers another neighborhood to mine on matters constitutional, I have to take a long hard look at where I live. Even more so when Matt moves on to where the redoubtable Shannen Coffin resides. So I am sobered by their disagreement with some of my analysis of McCain’s judges’ speech. I even agree, come to think of it, with Shannen and Matt that Senator McCain has, at times, been non-partisan to a fault on judges. ( I do not count the Gang of Fourteen in this category, however, as do Shannen and Matt.) I would have preferred to see more of the warrior in McCain and less of the peacemaker when he dealt with Scumer, Leahy & Co.

Now we are talking about President McCain, not Senator McCain. I think the main thing now is to take McCain’s judges’ speech as his pledge and determine to hold him to it. (I am on his Justice Advisory Committee and mean to do my share of the holding.) But it is worth noting, too, that I disagree with Matt’s suggestion that Senator McCain’s “deference to the President” position is “insupportable”. Leave aside whether, all things considered, Senator McCain should have voted to confirm Ruth Ginsburg and/or Stephen Breyer. Call what we are talking about something other than “deference” if you wish. I submit that the norms or criteria according to which a President should select nominees for the bench differ from the norms and criteria according to which a Senator should decide to confirm (or oppose) the President’s choices. It also seems to me that this difference — whatever exactly it is — amounts to deference: a Senator (such as John McCain) should vote to confirm some nominees which he would not have nominated from the Oval Office. Put differently: that a Senator (such as John McCain) would not himself have nominated, say, Stephen Breyer, is not by itself sufficient reason to vote against Breyer’s confirmation.


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