Bench Memos

Unpopular Answers?

I might surprise you, Andy, with some of my answers. First, I don’t think that simple disagreement on constitutional doctrine is a good reason to vote against a nominee to the Supreme Court. The Constitution provides for presidential nomination of judges and justices in the same clause that provides for nominations of ambassadors and other officials, and I believe substantial deference is due to all such nominations, provided there are not questions of character or fitness that would make one unsuited for the job. This means that if a Democratic president nominates highly qualified liberals, the Senate should confirm them. So, in my mind, the Senate was right to confirm Justices Breyer and Ginsburg, even though I believe both are profoundly mistaken in their approach to constitutional interpretation and many other legal questions. Does this mean anyone is fair game? I’m not sure. But I am skeptical that a president would nominate someone to the Supreme Court that is so far afield. President Bush is not likely to nominate my friends Richard Epstein or Randy Barnett, and I doubt a Democratic president would seriously consider appointing a Cass Sunstein or Mark Tushnet. (Of course, if all Senators had my view about the inappropriateness of imposing ideological litmus tests on judges, maybe such nominations would be more likely . . . ).

As for the filibuster, I believe it should never be used to block confirmation of a judicial nominee, period. It is one thing to use the filibuster for its traditional purpose of extending debate–perhaps under the theory that a longer debate will cause some Senators to turn against a truly controversial nominee–but I think the use of the filibuster for judicial nominees is wrong, and contrary to the constitutional design, even if I don’t

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

Most Popular

Religion

Understanding the Mind of Modern Atheists

‘Heaven and earth will pass away, but my words will not pass away” (Matthew 24:35). Anthony DeStefano uses this Bible quote toward the end of his new book Inside the Atheist Mind: Unmasking the Religion of Those Who Say There Is No God, pointing to the resiliency and truth of Christianity. “You can hide it, ... Read More
Economy & Business

How the Constitution Limits State Taxes

Must a company have a physical presence in a state for that state to require it to collect taxes? The Supreme Court is considering that question, which has grown more important as online sales have taken off. The Competitive Enterprise Institute has submitted an excellent brief arguing that the answer is yes, at ... Read More
Culture

Off the Shelf: Suicide of the West

Editor’s Note: Every week, Michael Brendan Dougherty writes an “Off the Shelf” column sharing casual observations on the books he's reading and the passing scene. Before social media, Jonah Goldberg would respond to obstreperous emails from a much younger version of me with a characteristically light ... Read More
Education

The Scholarship/Activism Balance — A Rejoinder

The Martin Center recently published an article by sociology professor Fabio Rojas, in which he argued that professors should maintain the right balance between their teaching and scholarship on the one hand, and activism on the other. In today's article, the Center's Jay Schalin pushes back somewhat. Schalin ... Read More