Bench Memos

Putting Judicial Nominees in Perspective, Part IV

The anti-cloture reform agreement among 14 Senators encourages the President to consult in advance with senators about prospective nominees. That is a very bad idea, for reasons that I have explained here and here. It is especially bad because, as my previous posts in this series (on Rosemary Barkett, Lee Sarokin, and a not-so-hypothetical leftist nominee of a Democrat President) show, Senate Democrats have demonstrated that they do not deserve to be taken seriously as arbiters of the qualifications of judicial nominees.

But in all fairness to Senator Kennedy, I must point out that he is not always wrong about President Bush’s nominees. Well, at least once he wasn’t. Sort of.

Kennedy was one of nine Democrats who voted against an earlier nominee of President Bush’s. That nominee, Kennedy argued, had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy. The nominee’s record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling.” Among other things, when litigating on behalf of a state, the nominee had made “reactionary arguments” contesting the extent of Congress’s power to protect against discrimination.

In the area of voting rights, Kennedy thundered, the nominee’s record was equally bad. The nominee “was willing to defend the indefensible”—the use of literacy tests for voting–and had thereby demonstrated a willingness to discriminate against the poor and uneducated.

According to newspaper reports, the nominee had even described affirmative-action programs as affirmative discrimination.

Kennedy also found that the nominee’s record on sex discrimination raised “troubling questions.” By arguing for a deferential standard of review of classifications based on sex, the nominee had shown that he was not “genuinely concerned about the rights of women.”

And, of course, Kennedy found the nominee’s responses onRoe v. Wade “alarming.”

In sum, Kennedy feared, the nominee would work with others “to turn back the clock on the historic progress of recent decades.”

In retrospect, there is ample reason for those who have a proper understanding of the role of the courts in our constitutional republic to wish that Kennedy’s arguments had prevailed. For the nominee against whom Kennedy railed was none other than Justice David H. Souter, nominated by the first President Bush to the Supreme Court in 1990.

As a Justice, Souter has been far more left-wing than even Kennedy might have hoped. Contrary to media depictions of him as a “moderate,” Souter has read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution. Souter’s only arguable saving grace as a Justice has been a prose style so impenetrable that his opinions often verge on the incomprehensible.

It is particularly instructive that Kennedy deployed his full arsenal of clichés against Souter, for those same clichés are now being used—with comparable disregard for accuracy—by Senate Democrats generally against President Bush’s judicial nominees. Kennedy’s insistence that a Supreme Court nominee have demonstrated his leftist credentials in order to be confirmed has now become the position of Senate Democrats on President Bush’s appellate-court nominees. Senate Democrats do not want judicial nominees who will be responsible judges. They want judicial nominees who will be their political allies, imposing through the courts what the Left cannot achieve through the political processes.

(Source of Kennedy statements about Souter: Kennedy’s October 2, 1990, Senate floor statement.)

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