I have finally read the debate between, on the one hand, Adam and Kevin White and, on the other, Andy McCarthy and Mark Levin. I’m much closer to the views of the latter duo. I think that McCain was mistaken to make the deal and that Roberts and Alito could have been confirmed without the deal. One additional point worth making: The Whites speculate that in 2009 Republicans may be happy that the option to filibuster judges was preserved. I think there is almost no chance that Republicans would filibuster a Democratic judicial nominee, particularly to the Supreme Court. They almost all voted for Clinton’s Supreme Court nominees; there are serious risks to filibustering a Supreme Court nominee; and the vast majority of them are on record saying that filibusters of judges are unfair and unconstitutional. I wish they had not voted for Breyer and Ginsburg and have no objections to filibusters in principle; but if we’re trying to figure out the consequences of the Gang of 14 deal, we need to consider the real range of possibilities when it comes to Republican behavior.
But I would say that agreeing to the deal was a mistake of prudential judgment, not a mistake of principle. I think the Whites’ argument that the deal was necessary to get conservatives confirmed to the Supreme Court was a mistake, as I said. But someone could certainly think, in good faith, that it was necessary. Several of the other arguments the Whites make seem to me, similarly, mistaken but reasonable. It was a mistake–a much more momentous mistake than the Gang of 14 deal–to nominate Antonin Scalia and Robert Bork to the Supreme Court in that order instead of the reverse order. But I wouldn’t say that the people who made that mistake were soft on judicial nominations because they made it, and I don’t think I would say that of Senator McCain for this mistake.