Ramesh, Thank you for your characteristically gracious response. I am back to
my wiser practice of agreeing with you. To the extent “ideology” should be
understood as including the judicial function – particularly, whether a judge
deems himself free to legislate his subjective sense of justice rather than
bound by the constitution and laws – I agree that this is a proper basis for
voting against a nominee (although I have doubt about whether it would be an
appropriate basis to filibuster a nominee, since I think congress owes the
president an up or down vote on nominations). In a more perfect world,
commitment to proper conduct of the judicial function would be an aspect of what
we think of as “competence,” but that ain’t the world we’re in.
I wonder, though, how far into the weeds we should be willing to go on this.
Should judges, for example, take account of legislative history? I personally
think Justice Scalia is right when he says no, but there are many fine judges
who think otherwise and who try to apply legislative history honestly. Given
the divergence of opinion among reasonable jurists on that one, I don’t think
I’d be comfortable relying on it as a reason to vote against a nominee even
though it implicates the judicial function. But on the more macro aspects of
the judicial function – e.g., the nominee who thinks he can undo a law on the
ground that he personally thinks it is foolish as opposed to unconstitutional –
I think that’s absolutely a basis to vote against him.
Interesting and timely question: what about a nominee who believes it is proper
to resort to foreign law (or treaties unratified by the U.S.) in interpreting
U.S. constitutional provisions? I’m sure we’d agree that’s a bad thing. But,
as a standalone, is it a justification to vote against confirmation? And does
it matter if the nomination is to the Supreme Court or the lower courts? My gut
tells me it probably is a good enough reason to vote against confirmation, at
least at the Supreme Court level, but I’d need to think about that some more.
You’re right to point out our common ground on priorities. I regret if I
misunderstood or misstated your position. Obviously, a disagreement about how
best to achieve what is important is of less moment than a disagreement about
what is important.






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