The Corner

More on the Confirmation Standard

… which I revisited yesterday. John Hinderaker’s Powerline partner, Paul Mirengoff (who is a superb appellate litigator in his own right), weighs in here. Paul’s point is that to cling to an outdated and not constitutionally required standard of deference to the president would amount to an unacceptable unilateral disarmament by Republicans:

The Constitution offers no meaningful standard, so we are free to decide the question based on what makes sense and what has worked. Throughout our history, the president was granted great deference on Supreme Court appointments, and this approach seemed to work okay. Moreover, it made sense back in the 18th century to fill slots in an “undemocratic” branch almost entirely through the input of the president, whose connection to the electorate was closer than that of Senators who at the time were elected by state legislatures.

The deference regime crumbled fairly recently when Democrats came to rely so heavily on the Supreme Court to bring about changes they could not enact through the normal political process. With the stakes thus raised, the Democrats felt they needed more of a say even when they didn’t control the executive branch.

There is, in fact, a strong argument that, with the Supreme Court as influential as it is now, and with Justices now vetted to the point that they can reasonably be expected to adhere to the philosophy of the president who appoints them, Congress should have a major say in the selection of Justices. Such a say implies the prerogative to vote down nominees based solely on considerations of political ideology.

I agree with that. (I’ve written on this point here, and also commend Ramesh’s 2005 article in the print mag, the gist of which is here.) If judges, insulated from political accountability, are going to legislate from the bench, we ought to treat them like legislators, press them hard for their views, and fight their confirmation on ideological grounds if warranted. 

This is especially the case with a nominee like Sonia Sotomayor. To the extent we allow nominees to get away with not answering questions on specific issues that may come before the Court it is because we presume that, when such an issue does arise in a case, the judge will consider herself bound by the governing law and apply it to the facts. “Empathy” judges, however, are essentially telling us that considerations other than the governing law should determine the result. There is no good reason to extend deference to such a position. Indeed, it is essential to press “empathy” judges on what extra-legal considerations they will apply and the confirmation hearing is the last opportunity to do it before they get a lifetime appointment.


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