ConfirmThem

By Marshall Manson Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

A missive from Reid Cox:

I have often been asked this week why Democrat-appointed Justices like Ginsburg and Breyer got confirmed with 80+ votes in the Senate while Republican-appointees who, by all accounts, are equally qualified seem to struggle to get 60 votes to avoid a filibuster?

I believe the answer to this question lies in a double standard that will always be a losing situation politically for Republicans and a winning one for Democrats, at least when you ignore principle, which is so rarely a part of politics anyway. By this I mean that Republicans lose, at least from the political perspective, because Republicans are predisposed to vote to confirm judges regardless of their political views, while Democrats win, again from the political perspective, because they only will vote to confirm judges that share the Democrats’ liberal leanings. In other words, when it comes to a conservative nominee, Republicans start off in the hole in terms of votes, while when it comes to a liberal nominee, Democrats start out ahead.

To explain this, let’s start with the Democrats/Left. They believe that judges base their decisions on their personal beliefs and values, and that judges should do this. Given this belief, the Democrats/Left will vote for nominees that agree with them politically, while voting against nominees that disagree with them politically. After all, if a judge’s personal and political beliefs matter — since the Democrats/Left believe that the judiciary should decide cases based on whatever is the preferred political policy — then why vote for someone who disagrees with the way you see the world and the way you want the world to be run?

The Republicans/Right, on the other hand, believe that judges should (and, at least good judges, presumably do) remove themselves and their personal beliefs from the judicial process and focus only on the law. The Republicans/Rights believe this way because they think that the law is legitimate and just if it derives from the consent of the governed. That is why there are two political branches (Congress & President), which are elected, and one judicial branch that is not political, not elected and not empowered to impose its own political policy preferences on the governed. However, given this philosophy, it is also neither relevant nor appropriate for Republicans/Right to vote for or against the confirmation of a judge based on that nominee’s personal beliefs. Instead, the standard for Republicans/Right is whether the judge has the intellect, integrity and temperament to impartially hear and decide cases based on the law handed down by the two political branches.

Thus, the confirmation conundrum exposed. Because Democrats/Left make politics relevant, indeed primary, to judicial decisionmaking — a judge’s personal political views are either a qualification or disqualification. On the other hand, since Republican/Right believe (rightly so) that politics should not be relevant to judicial decisionmaking — a judge’s personal political views don’t rise to a high level of consideration so long as the judge can show intellect, integrity and good temperament. Following these principles, Republicans/Right will vote to confirm judges who hold opposing personal political viewpoints because those views aren’t relevant (hence the overwhelming majorities, including Republicans, to confirm Justices Ginsburg & Breyer), while Democrats/Left will vote against confirming judges who hold opposing personal political viewpoints because, according to the Democrats/Left, those opposing views disqualify the judges (hence the constant uphill battles, even when a nominee is overwhelmingly qualified, like Judge Roberts).