Bench Memos

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I don’t want to get Gerry Bradley thrown off Senator McCain’s Justice Advisory Committee — and I’m very glad he’s on it to hold the Republican presidential nominee to the standards enunciated in that speech the other day — but I wonder whether Gerry really agrees more with the senator, or more with me. Here’s Gerry’s take on the difference between a presidential nomination of a Supreme Court justice, and a senator’s vote to confirm that nominee:

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.

We are largely agreed on what Gerry says here. The initiative to shape the future of the Supreme Court rests with the president, who nominates. Senators can only say “yea” or “nay” to those nominations, and for various prudential reasons may wish to say “yea” when the nominee is someone they would very strongly prefer not to see on the Court. They may believe that the nominee is “good enough” but not ideal. They may expect the president to do no better with his next nominee if this one is defeated. They may be able to count heads, see that the nominee is bound to be confirmed regardless of any arguments they might make to the contrary, and decide to join the “yea” votes in order not to antagonize the president or their fellow senators.  I would not call this “deference,” as Gerry does, but a pragmatic political calculation when one is in the minority. It would not exactly be principled behavior (in the strongest sense), but neither would it be blameworthy depending on the circumstances.

McCain’s own statement on the matter was much stronger, and strove to enunciate a principle that animated his votes for Ginsburg and Breyer:

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me. And yet when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsburg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president’s call to make.

As a single paragraph, this travels in such a circle that it comes back to bite itself in the hindquarters.  Senator McCain has his “own standards” for appointing justices, exemplified by Roberts and Alito. I would ordinarily take these to be his notion of what makes a justice “qualified.”  But in the next breath he declares that Ginsburg and Breyer were “qualified,” and inasmuch as there was a president who preferred such nominees and it was his “call to make,” it would have been unprincipled — “petty, and partisan, and disingenuous” — for him to vote against those nominees as a senator.

This is only coherent if Senator McCain is willing to say something like, “Here at Grade C is what I would call a merely qualified nominee to the Court, but I promise to hold my own nominations to Grade A standards.” Yet throughout his speech, McCain rightly rails against the very kind of jurisprudence that is practiced by Justices Ginsburg and Breyer (among others), effectively identifying it with Grade F performance. Could that be seen coming when they were nominated? I think probably so.

Now I understand that Senator McCain is already looking forward to enjoying the presidential initiative in filling vacancies on the Supreme Court. May he romp to the victory that makes his anticipation a reality. But it is this anticipation, not any constitutionally principled obligation, that leads him to identify his votes for Ginsburg and Breyer as positive and obligatory goods, rather than “least bad” choices at the time (or, worse yet, lazy nonchalance at the time). He wants Democratic senators to respond to the same alleged imperative: “Gee, the nominee’s qualified, and it’s the president’s call.” If that helps, it is its own justification. But I would not call it anything like a principled obligation.


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