02-16-2016, 09:35 PM
OK...trying to restrain my own ideological bent here and attempting to put on my political science hat.
After the 19th C the Senate generally confirmed all well-qualified justices nominated by a President without regard to ideology. There was considerably deference to Presidential appointments.  Take 1986 for example. Antonin Scalia came up for confirmation in August, three months before an election. The Senate was 53R-47D. It confirmed Antonin Scalia 97-0. Democrats could easily have filibustered Scalia but that sort of thing just wasn't done then. As it turns out, had they delayed they would have had much greater influence over the choice, since the results of the 1986 election reversed control of the Senate 55D-45R.Â
Then the Bork nomination came forward the very next year. Democrats and some pro-choice Republicans feared that Bork would tilt the court against Roe v. Wade and some other critical (to them) issues. Thirteen months before the next Presidential election Bork was defeated 42-58. Bork was bitter and thought that Reagan had offered only tepid support in the final showdown--that even his friends had backed off for their own political reasons.Â
Just two years ago Scalia offered a rare TV interview in which he reflected on the confirmation process. He was the newest member of the SC when Bork went down. Scalia stated that he would not want to go through the modern confirmation process--that it had become too politicized. His reasoning though was thoughtful. He said that the process has become politicized only because the SC has been deciding political issues. Gay marriage, abortion, etc. he says are far removed from the Constitution and should be decided by the political process and not the judicial process. But when it becomes known that the SC will be deciding critical (in his view) political issues, then of course the membership of the court becomes politicized. I think the summary of his views are that if the SC operated according to strict constructionism then there would not be the fierce partisan wrangling about who would be on the court--the Court would be returned to the role of deciding cases that may have import in a technical sense on the law, but the big-ticket items that get people riled up over the SC would be off the judicial table.Â
My personal view as a theorist who studies the American constitutional founding is that strict constructionism is often (not always) a mirage--because the people who wrote the Constitution had myriad understandings of what it meant, and their disagreements were often intentionally papered over with ambiguous phrases and meanings within the document they wrote. The Classic example is Judicial Review itself, which is NOWHERE to be found in the Constitution, but was itself created by an act of judicial activism by the Marshall court. Hamilton wrote in the Federalists that judicial review was necessary and expected, but Jefferson hated the idea and reacted angrily after Marbury vs. Madison was decided--in his favor but setting a precedent he detested. (Of course Hamilton was barely there and Jefferson not-at-all when the document was written, but each had adherents in the Convention.) So what was the original intent? In any case, while I disagree with the foundation of Scalia's philosophy, I do think he is right to say that a SC populated with strict constructionists would in fact be substantially depoliticized. Imagine, for example, a SC without judicial review. How controversial would appointments be?
Well, the Bork episode pretty well established that the Senate was no longer going to defer to the President and would exert its own judgment about nominees. Thus it was mostly, but not entirely, Democrats who broke the long tradition of only opposing nominees that seemed manifestly unqualified. At the time I confess to thinking this was entirely appropriate. I had felt for a long time that the Senate had become much too deferential to Presidents and that the Constitution did in fact expect this deliberative body to deliberate and not simply to defer.
Which brings us to now. Republican Senators would be well within their rights to vote down an Obama-nominated justice that they regarded as ideologically extreme, just as Democrats decided to vote down Bork. Bork, after all, was highly qualified but simply ideologically unacceptable to Democrats, and this forced Democrats to oppose him openly on ideological grounds. Why shouldn't Republicans do the same today?
The decision not to allow any nomination to come up for a vote does indeed take this in a different direction. I think when the Senate uses procedural rules like this--or the filibuster--it feeds the cynicism and disgust the American people profess for "Washington trickery." In my view, Republicans would be far better off to have a serious debate over a nominee and then to vote her down on their version of the Bork argument. This would avoid the appearance of trickery and tradition-busting. I think that if the McConnell decision persists it will begin to resemble the government shut down which wound up costing the Republicans more votes than it gained them.
So why would McConnel opt for this course rather the the simpler, well established precedent of just voting down the nominee for ideological reasons? It won't change the outcome either way. I think he has calculated that taking the most extreme stance possible will play very, very well with the base Republican voters and will help to motivate them--to give money, to turn out, etc. This can become a campaign rallying cry to "save the Supreme Court." On the other hand, the option of playing by the traditional rules might make the Republicans seem more moderate and reasonable to independent voters, but McConnell must believe that anything to be gained among those independents is outweighed by the appeal of the "no compromise" philosophy to the Republican base.
Frankly, I think he is wrong, and I half expect that Republicans will figure this out and relent, offer a vote, and defeat the future nominee. Maybe they will do so right before the election.
After the 19th C the Senate generally confirmed all well-qualified justices nominated by a President without regard to ideology. There was considerably deference to Presidential appointments.  Take 1986 for example. Antonin Scalia came up for confirmation in August, three months before an election. The Senate was 53R-47D. It confirmed Antonin Scalia 97-0. Democrats could easily have filibustered Scalia but that sort of thing just wasn't done then. As it turns out, had they delayed they would have had much greater influence over the choice, since the results of the 1986 election reversed control of the Senate 55D-45R.Â
Then the Bork nomination came forward the very next year. Democrats and some pro-choice Republicans feared that Bork would tilt the court against Roe v. Wade and some other critical (to them) issues. Thirteen months before the next Presidential election Bork was defeated 42-58. Bork was bitter and thought that Reagan had offered only tepid support in the final showdown--that even his friends had backed off for their own political reasons.Â
Just two years ago Scalia offered a rare TV interview in which he reflected on the confirmation process. He was the newest member of the SC when Bork went down. Scalia stated that he would not want to go through the modern confirmation process--that it had become too politicized. His reasoning though was thoughtful. He said that the process has become politicized only because the SC has been deciding political issues. Gay marriage, abortion, etc. he says are far removed from the Constitution and should be decided by the political process and not the judicial process. But when it becomes known that the SC will be deciding critical (in his view) political issues, then of course the membership of the court becomes politicized. I think the summary of his views are that if the SC operated according to strict constructionism then there would not be the fierce partisan wrangling about who would be on the court--the Court would be returned to the role of deciding cases that may have import in a technical sense on the law, but the big-ticket items that get people riled up over the SC would be off the judicial table.Â
My personal view as a theorist who studies the American constitutional founding is that strict constructionism is often (not always) a mirage--because the people who wrote the Constitution had myriad understandings of what it meant, and their disagreements were often intentionally papered over with ambiguous phrases and meanings within the document they wrote. The Classic example is Judicial Review itself, which is NOWHERE to be found in the Constitution, but was itself created by an act of judicial activism by the Marshall court. Hamilton wrote in the Federalists that judicial review was necessary and expected, but Jefferson hated the idea and reacted angrily after Marbury vs. Madison was decided--in his favor but setting a precedent he detested. (Of course Hamilton was barely there and Jefferson not-at-all when the document was written, but each had adherents in the Convention.) So what was the original intent? In any case, while I disagree with the foundation of Scalia's philosophy, I do think he is right to say that a SC populated with strict constructionists would in fact be substantially depoliticized. Imagine, for example, a SC without judicial review. How controversial would appointments be?
Well, the Bork episode pretty well established that the Senate was no longer going to defer to the President and would exert its own judgment about nominees. Thus it was mostly, but not entirely, Democrats who broke the long tradition of only opposing nominees that seemed manifestly unqualified. At the time I confess to thinking this was entirely appropriate. I had felt for a long time that the Senate had become much too deferential to Presidents and that the Constitution did in fact expect this deliberative body to deliberate and not simply to defer.
Which brings us to now. Republican Senators would be well within their rights to vote down an Obama-nominated justice that they regarded as ideologically extreme, just as Democrats decided to vote down Bork. Bork, after all, was highly qualified but simply ideologically unacceptable to Democrats, and this forced Democrats to oppose him openly on ideological grounds. Why shouldn't Republicans do the same today?
The decision not to allow any nomination to come up for a vote does indeed take this in a different direction. I think when the Senate uses procedural rules like this--or the filibuster--it feeds the cynicism and disgust the American people profess for "Washington trickery." In my view, Republicans would be far better off to have a serious debate over a nominee and then to vote her down on their version of the Bork argument. This would avoid the appearance of trickery and tradition-busting. I think that if the McConnell decision persists it will begin to resemble the government shut down which wound up costing the Republicans more votes than it gained them.
So why would McConnel opt for this course rather the the simpler, well established precedent of just voting down the nominee for ideological reasons? It won't change the outcome either way. I think he has calculated that taking the most extreme stance possible will play very, very well with the base Republican voters and will help to motivate them--to give money, to turn out, etc. This can become a campaign rallying cry to "save the Supreme Court." On the other hand, the option of playing by the traditional rules might make the Republicans seem more moderate and reasonable to independent voters, but McConnell must believe that anything to be gained among those independents is outweighed by the appeal of the "no compromise" philosophy to the Republican base.
Frankly, I think he is wrong, and I half expect that Republicans will figure this out and relent, offer a vote, and defeat the future nominee. Maybe they will do so right before the election.
