Swing votes and Ideologues
Sen. John Kerry, who lost his 2004 bid for the US presidency despite his service in Vietnam, has recently echoed the thoughts of many Democrats (synonyms: progressives, socialists, the mainstream media, etc.) in stating “We can't afford to see the court's swing vote, Justice Sandra Day O'Connor, replaced with a far-right ideologue like Samuel Alito.” Their argument is that you cannot replace a ‘swing’ vote with a partisan one, and that we must somehow retain the current ideological or philosophical balance of the court. I suspect that had Sen. Kerry - highly acclaimed for his steadfast consistency - been elected to the presidency, he would have replaced the strict-constructionist Chief Justice Rehnquist with a similarly-minded Sam Alito or John Roberts, and would currently be pursuing a ‘swing’ vote for the O’Connor vacancy.
Such concern for the ideological balance of the court was displayed by the last Democrat president, Bill Clinton. During his administration, Clinton made two additions to the court. He replaced Harry Blackmun, a Nixon appointee. Blackmun authored the majority opinion on Roe v. Wade in 1973, beginning a drift to the left as he gradually betrayed expectations that he would interpret the Constitution conservatively. Clinton’s pick for this conservative-turned-liberal seat was Stephen Breyer, one of the liberal justices on the court today. Breyer was confirmed by a vote of 87 to 9. Clinton’s other appointment was for the Byron White seat. White and Rehnquist were the only dissenters from the original Roe decision and Tim LaHaye, author of the popular rapture fiction series, called White the only true conservative justice to serve during his lifetime. Clinton thus had no qualms about replacing one of the most conservative justices with a liberal – and probably in the superlative – justice, Ruth Bader Ginsburg. When the Senate performed its ‘Advice and Consent’ function for Justice Ginsburg, she avoided most questions on her personal views. She was confirmed by a 96 to 3 vote to a formerly conservative seat.
When we compare this with the recent Republican nominees, we find a trend developing following the borking of Robert Bork in 1987. Scalia had been nominated the year before by a vote of 98-0. The Bork debacle appears to have changed the dynamics of court appointments. Moderate nominees such as "stealth justice" David Souter or Reagan’s compromise candidate for the Bork position, Anthony Kennedy, have passed the Senate by a vote of 90 to 97, respectively. The liberal nominees mentioned above passed by 87 to 96 votes. The problem is with the conservative nominees, which is to say with the liberal senators. Clarence Thomas was subjected to the same media prostate examination as Bob Bork, narrowly beating back his accusers – groups whose mission statement is the advancement of people his ancestry - to pass 52-48. G.W. Bush’s first nominee, John Roberts, passed with a high 78-22 due to the opening of a second seat. This switched the controversy from the Rehnquist seat, which Roberts now holds, on the O’Connor seat to which Samuel Alito is expected to be confirmed by no more than 60 votes.
Why is it that Democrat senators have opposed strict-constructionist nominees by Republican presidents while Republican senators have consented to loose-constructionist nominees by Democrat presidents? Is it because the Republicans have more respect for the constitutional process of judicial appointments? The president does have the power to appoint judges. Presidential candidates normally make explicit what judicial philosophy they would look for in their nominees. The Senate’s ‘Advice and Consent’ should be little more than approving or disapproving a Supreme Court nominee’s character, not blocking one’s opponents in the arena of ideas. Or perhaps the Republican senators are just wimps compared to the Democrats. Let’s hope that it is the former: at least the evidence reveals which tent houses the real radical ideologues.
Such concern for the ideological balance of the court was displayed by the last Democrat president, Bill Clinton. During his administration, Clinton made two additions to the court. He replaced Harry Blackmun, a Nixon appointee. Blackmun authored the majority opinion on Roe v. Wade in 1973, beginning a drift to the left as he gradually betrayed expectations that he would interpret the Constitution conservatively. Clinton’s pick for this conservative-turned-liberal seat was Stephen Breyer, one of the liberal justices on the court today. Breyer was confirmed by a vote of 87 to 9. Clinton’s other appointment was for the Byron White seat. White and Rehnquist were the only dissenters from the original Roe decision and Tim LaHaye, author of the popular rapture fiction series, called White the only true conservative justice to serve during his lifetime. Clinton thus had no qualms about replacing one of the most conservative justices with a liberal – and probably in the superlative – justice, Ruth Bader Ginsburg. When the Senate performed its ‘Advice and Consent’ function for Justice Ginsburg, she avoided most questions on her personal views. She was confirmed by a 96 to 3 vote to a formerly conservative seat.
When we compare this with the recent Republican nominees, we find a trend developing following the borking of Robert Bork in 1987. Scalia had been nominated the year before by a vote of 98-0. The Bork debacle appears to have changed the dynamics of court appointments. Moderate nominees such as "stealth justice" David Souter or Reagan’s compromise candidate for the Bork position, Anthony Kennedy, have passed the Senate by a vote of 90 to 97, respectively. The liberal nominees mentioned above passed by 87 to 96 votes. The problem is with the conservative nominees, which is to say with the liberal senators. Clarence Thomas was subjected to the same media prostate examination as Bob Bork, narrowly beating back his accusers – groups whose mission statement is the advancement of people his ancestry - to pass 52-48. G.W. Bush’s first nominee, John Roberts, passed with a high 78-22 due to the opening of a second seat. This switched the controversy from the Rehnquist seat, which Roberts now holds, on the O’Connor seat to which Samuel Alito is expected to be confirmed by no more than 60 votes.
Why is it that Democrat senators have opposed strict-constructionist nominees by Republican presidents while Republican senators have consented to loose-constructionist nominees by Democrat presidents? Is it because the Republicans have more respect for the constitutional process of judicial appointments? The president does have the power to appoint judges. Presidential candidates normally make explicit what judicial philosophy they would look for in their nominees. The Senate’s ‘Advice and Consent’ should be little more than approving or disapproving a Supreme Court nominee’s character, not blocking one’s opponents in the arena of ideas. Or perhaps the Republican senators are just wimps compared to the Democrats. Let’s hope that it is the former: at least the evidence reveals which tent houses the real radical ideologues.
posted by Ryan | 4:50 pm
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