The Corner

Charles Krauthammer’s Puzzling Column on Sotomayor

I’m puzzled by Dr. K’s column today.  He states a compelling case, with the singular Krauthammer eloquence, for why Judge Sotomayor should not be on the Supreme Court, yet he concludes by arguing that she should nevertheless be confirmed.  Here’s the crux of his contention on that score — fleeting and conclusory compared to the rest of his well-reasoned argument:

Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds — consistently violated by the Democrats, including Sen. Obama — that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.

The emphasis on “solely” is in the original, and it puzzles me all the more.  The only reason to confirm her is that a president is entitled to deference on court picks?  And what on earth does the “mainstream views of the winning party” have to do with it?

Presidents are certainly entitled to deference on executive branch nominees. After all, they will be part of his team and the power they exercise is exclusively his. If they seem resistant to corruption, competent, and have performed reasonably well in other positions, they should be confirmed. But the same lax standard does not apply to judicial nominees.  They are chosen to be members of a different branch of government, and they wield great power for the rest of their lives (unless they choose to retire) — the consequences of their appointment to the bench are often felt for decades after the president who nominated them is gone.

What, furthermore, is the “mainstream” of the Democratic party? Is it Leftist elites? of elected Democrats? of rank-and-file Democrats? Should we peg it by what Democrats say about themselves (which is that they are moderate centrists) or what they do (which is immoderate and left — sometimes far left — of center)? Even if we could peg it accurately, why should the Democrat mainstream matter?  Why not the mainstream of the country, which, even having elected Obama, is considerably to the right of whatever the Democrat mainstream is? The mainstream of the country may be to the left of most conservatives, but it would not include Judge Sotomayor, whose views are Leftist.

And in any event, assuming you could figure out what the proper mainstream is, why should it make a difference when we are picking a judge? A Supreme Court justice is supposed to apply the law, not reflect the political sentiments of some popular majority.  Let’s say Congress enacts a law that is bad but constitutional. Most people would probably not want the law to be given effect, but the judge’s job is to validate even the stupid laws — even the laws the judge herself does not like — as long as they don’t run afoul of the Constitution. Whether such a decision is popular or representative of mainstream views is irrelevant: If the mainstream wants, it can change the law small-d democratically.

If every senator followed Dr. K’s advice, no tally would distinguish bad from good judicial candidates.  Even the bad ones would get their lifetime appointments on a 100-0 senate confirmation vote, thus encouraging the selection of more bad candidates.  What is wrong with voting against a candidate you do not believe should get the job — even if you know, based on the senate numbers, that the bad candidate is going to be confirmed regardless of your vote?

If Charles’s point were that the president is entitled to an up-or-down vote on his judicial nominees, and that Republicans should not use filibusters and other senate privileges to block nominees like Democrats did to Bush (and like Republicans, to a lesser extent, did to Clinton), that would be a perfectly respectable position. In fact, as I’ve argued, I think it’s the sound constitutional position though I don’t believe in unilateral disarmament, either. (For now, the tension between those positions is academic since the numbers to support a filibuster are not there.) But, at most, the senate owes the president only to have a confirmation vote, not to win a confirmation vote.

I don’t think Senators owe any deference on judicial selections. There is no reason to weight the system beyond ordinary politics — if senators vote unreasonably against the president’s good nominees (or rubber stamp his bad ones) voters can punish the senators in the next election.  That’s more than enough pressure to do the right thing. But even if I accepted, for argument’s sake, that some deference is owed, it would be very slight deference — not nearly what the president should get for executive branch appointments — and it could be overcome pretty easily if the judicial nominee were bad enough.

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