Bench Memos

Re: Hopes and Fears

In response to Gerard Bradley’s post below, let me clarify my hopes about the Roberts confirmation. First, I hope Judge Roberts sails through with few votes against him because, objectively, he is unquestionably qualified and deserving of confirmation and I hope for the day when the confirmation process operates as it should, and the confirmation of individuals like Roberts is no longer contested. Now I recognize this is a faint hope, but I’m not sure I read the politics in quite the same way as Professor Bradley. First, I think that if the president were to nominate another conservative to the court, there will be an effort to portray him or her as to the right of Roberts. Given that it is unlikely that the next nominee will have the same pedigree and depth of liberal support within the D.C. Bar as does Roberts, this effort will likely be successful. Thus, if there are 35-40 votes against Roberts, a subsequent conservative nominee will have a more difficult time getting confirmed. The best argument for hoping the Left musters 30-plus votes against Roberts is either a) this will represent the maximum number of votes the Left can muster against a nominee on ideology alone so subsequent conservative nominees will also make it through with equivalent vote tallies, or b) there will be a political backlash against some of those who vote against Roberts that will make moderate and/or “Red State” Democrats less likely to vote against subsequent nominees. These scenarios are possible, but speculative. Thus I would prefer that exceedingly qualified court nominees (of either party) sail through without substantial Senate opposition. In this respect, the Ginsburg confirmation is, and should be, the model. Alas, Professor Bradley and I probably agree that the likelihood of most Senate Democrats, let alone liberal activist groups, accepting this model in the near term is slim to none.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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