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June 30, 2007
Love the Cook, Hate the Food
Imagine if the dining section of the Washington Post had an editorial page. And on that page, they weighed in on both the quality of restaurants, but also the hiring processes of kitchens. And let's assume, finally, that the page repeatedly endorsed cooks who promised to make dishes the Washington Post didn't like, and then the Post repeatedly wrote editorials condemning those dishes, and the direction of the restaurant, and the state of dining today. Wouldn't that seem...weird?
And yet, it would almost be less weird were the stakes actually confined to a satisfying meal, rather than the direction of the Supreme Court:
Media Matters notes a curious trend. The Washington Post endorsed the confirmation of John Roberts. The Washington Post endorsed the confirmation of Samuel Alito. Now, The Washington Post has gone an excoriated the recent spate of 5-4 decisions in which Roberts and Alito, predictably, joined with fellow conservatives William Rehnquist, Antonin Scalia, and Clarence Thomas to do the sort of things that conservative judges do.
One wishes, at this point, that the Post would simply endorse the decisions as well. If the Post wants to become conservative on judicial issues, the way it's become conservative on foreign policy issues then it is, of course, free to do so. But hewing to a liberal line when it doesn't matter only adds a veneer of credibility when they put forward conservative views on question that do matter -- who should and who should not be confirmed.
June 30, 2007 | Permalink
Comments
Come now, this is not very smart. I'm a judicial conservative, but I would have "endorsed" confirmation of Justice Breyer under President Clinton (as many, many Republican Senators did, also with RBG) because the President is entitled to his nominee within certain broad limits (basically, competence and integrity).
The Washington Post simply supports the system we've always had, where Presidential elections do indeed shape the course of the Supreme Court. Nothing mysterious or inconsistent about that.
Posted by: Bill | Jun 30, 2007 6:46:03 PM
So Rehnquist is now deciding Supreme Court cases from beyond the grave?
Posted by: Dulcie | Jun 30, 2007 7:41:47 PM
Yes, I think that's mad. The separation of procedure from outcomes is fairly foolish. The WaPo can oppose the confirmation of someone they think will harm the country even as they understand it's Bush's right to nominate that figure.
Posted by: Ezra | Jun 30, 2007 7:56:49 PM
The separation of procedure from outcomes is fairly foolish.
There is no separation of procedures from outcomes in the Post's stance. The outcome they seek is long-term good will and stability in government. Some people reasonably think that this is best achieved by only opposing nominees who clearly show they lack the temperament or expertise to be Justices. I think it's a close call. If we go down the road of opposing very well qualified and apparently honest men like Roberts and Alito, the Court will become increasingly caught in the political process, which there are good reasons to avoid as much as possible. You may disagree, but it's hardly a mad position.
Posted by: Sanpete | Jun 30, 2007 8:29:10 PM
I have to echo what Sanpete said. The WaPo editorial board didn't endorse Alito and Robert's confirmations because they necessarily agreed with them. They recognized that they were clearly qualified for the job and that opposition on ideological grounds sets a bad precedent. Judges aren't supposed to be policymakers; supporting a judge simply because his decisions might come out the way you like is foolish.
Posted by: Hans Moleman | Jun 30, 2007 8:39:42 PM
But the judges are indeed making policy from the bench, and this should be precisely no surprise - abundant evidence was available for both that they were far more committed to forcing some kinds of outcome than maintaining any actual standard of law. It was dismissed by the chattering classes then, but that's their wilfull blindness. People who dislike these outcomes should have opposed the nominations then.
Posted by: Bruce Baugh | Jun 30, 2007 9:52:45 PM
Granted, there's a lot of traffic between the two sites, but you can't assume we'll intuit the clip is from Yglesias.
Posted by: sangfroid826 | Jun 30, 2007 10:07:54 PM
abundant evidence was available for both that they were far more committed to forcing some kinds of outcome than maintaining any actual standard of law
No, actually not. This is naturally how those on both sides tend to see the other, but I've seen no good evidence for it.
Posted by: Sanpete | Jun 30, 2007 10:09:50 PM
So can someone explain to me the non-lawyer what standard it is exactly by which Alito and Roberts are "qualified"? I mean what exactly are the qualifications?
Posted by: dan | Jun 30, 2007 10:17:28 PM
Posted by: Sanpete | Jun 30, 2007 11:50:49 PM
The idea that Senators should consider only "qualifications" is silly, given that the President plainly takes ideology into account. Even sillier is the idea that judges will stop being policymakers if we just sort of pretend that the consistently conservative votes of Alito and Roberts are just pure flukes.
The Breyer comparison is specious. Many Republicans supported him because he's moderate who has voted with the conservatives in otherwise slplit civil liberties, and affirmative action cases. Clinton nominated him -- although by all accounts he was far from his first choice -- because he could get through the Senate easily. If the Republicans had agreed to let Clinton appoint a new Douglas or Marshall -- someone as liberal as Alito is reactionary -- you might have something.
Posted by: Scott Lemieux | Jul 1, 2007 2:49:07 AM
Simplistic....more'n likely
But when..
You own the President and
You own the House and
You own the Senate,
Everything else -'advise and consent' be damned -
given the polarization, is pure Biden-blather.
[The question is, will Progressives, given a similar opportunity, ram nominees down the throat of the country as the right wing just did?
And I WANT to see us do that (with a toilet tool!)
But I HOPE we don't. SO-o conflicted]
Posted by: has_te | Jul 1, 2007 12:26:54 PM
Not sure what you mean by "qualifications," Scott, but for the ABA they include the matters that are supposed to make for a good judge, including temperament and commitment to apply the law in good faith. No one has suggested anyone pretend that judges aren't selected in part for their political leanings. The point is to try to minimize the politics and emphasize the rest.
Posted by: Sanpete | Jul 1, 2007 2:22:24 PM
They recognized that they were clearly qualified for the job and that opposition on ideological grounds sets a bad precedent.
Therein lies the madness. These guys were nominated for completely ideological reasons. It's completely mad, unreasonable, and absurd to insist that they can't be opposed for the same reasons--that the President is somehow allowed to be more ideological than the Senate. "good will" is a two-way street.
Posted by: Consumatopia | Jul 1, 2007 2:25:24 PM
Sanpete--Ok, fine; when the President starts picking people at random off a list of well-qualified ABA candidates, then the Senate can ignore ideology.
Posted by: Scott Lemieux | Jul 1, 2007 2:26:40 PM
The standard view has been that neither the President or the Senate should have specific political litmus tests, but neither ignores ideology either. Obviously liberal presidents select nominees who have shown a generally liberal slant, and conservatives select conservatives, but they do this within the confines of what are considered to be sufficient qualifications, including that of good faith in application of the law. And the Senate, while it clearly also takes ideology into account, assumes that a president will appoint someone of her own ideology, broadly speaking. The goal is that ideology not be allowed to overcome the requirements for good faith and other qualifications on either side.
If the President or the Senate makes it plain that ideology matters more than qualifications, then we have extra problems and the system breaks down. If it were clear that the President had placed ideology above qualifications, or had insisted on specific political tests, then the Senate would be right to oppose the nominee.
Posted by: Sanpete | Jul 1, 2007 3:50:23 PM
The standard view has been that neither the President or the Senate should have specific political litmus tests,
Admittedly, this stuff about "litmus tests" is so vacuous it's hard to know what it means, but to the extent that it means anything at all Bush had a political litmus test and Roberts and Alito passed with flying colors. They were not just "broadly conservative" but wholly doctrinaire Federalist Society reactionaries. They were hooked-in Reagan administration operatives before becoming judges. This is entirely Bush's prerogative, of course, but for the Senate to ignore this entirely based on meaningless Broderite banalities (that, in practice, will always be applied so that your objection to a candidate is an "ideological litmus test" and mine isn't) is silly.
I note that you also continue to ignore Clinton being forced to go with the more moderate Breyer instead of other "broadly liberal" candidates he preferred. I guess the "standard view" was suspended then.
Posted by: Scott Lemieux | Jul 1, 2007 4:28:13 PM
The meaning of "specific political litmus test" is clear enough. It means a requirement that a nominee will vote a certain way on a particular controversial issue. Senators, far from ignoring this, tried to show that Roberts and Alito had been selected on that basis, but they were unable to do so.
I haven't ignored anything about Clinton being "forced" to select Breyer. He wasn't forced to do so; he simply found it convenient to accept the suggestion of Breyer. He very likely could have gotten a more liberal nominee through, but he seems to have been satisfied with Breyer, who reflected his general views well enough.
Posted by: Sanpete | Jul 1, 2007 4:58:30 PM
If it were clear that the President had placed ideology above qualifications, or had insisted on specific political tests, then the Senate would be right to oppose the nominee.
Translation: As long as the President doesn't state flatly that he is selecting by ideology, the Senate must limit its consideration to the ABA criteria. This holds true regardless of the actual political reality. Plausable deniability rules.
The meaning of "specific political litmus test" is clear enough. It means a requirement that a nominee will vote a certain way on a particular controversial issue. Senators, far from ignoring this, tried to show that Roberts and Alito had been selected on that basis, but they were unable to do so.
Here Sanpete indulges in one of his favorite tactics: shifting his argument without admitting to having done so. First he claims that it's a matter of using ideology as a trump card or political test, now he pretends he was talking about some far more narrowly defined "litmus test." Pointless to debate someone with so little respect for his own words, not to mention the intelligence of his readers.
I haven't ignored anything about Clinton being "forced" to select Breyer. He wasn't forced to do so; he simply found it convenient to accept the suggestion of Breyer. He very likely could have gotten a more liberal nominee through, but he seems to have been satisfied with Breyer, who reflected his general views well enough.
Opinion presented as fact without a shred of substantiation.
Posted by: W.B. Reeves | Jul 1, 2007 6:07:16 PM
As long as the President doesn't state flatly that he is selecting by ideology, the Senate must limit its consideration to the ABA criteria. This holds true regardless of the actual political reality. Plausable deniability rules.
Haven't said that or implied it, and I don't believe it.
First he claims that it's a matter of using ideology as a trump card or political test, now he pretends he was talking about some far more narrowly defined "litmus test."
Actually, I first referred to specific political litmus tests, then to ideology, and I see no problem with speaking in both specific and general terms.
Your constant stream of pointless nitpicks and slurs disturbs me. What have I done that has offended you this much, WBR?
Posted by: Sanpete | Jul 1, 2007 6:40:44 PM
They recognized that they were clearly qualified for the job and that opposition on ideological grounds sets a bad precedent.
In short: bullshitters prosper. And that's the WaPo editorial line: Let's Trust Our Bullshitters.
(As for Sanpete, he enjoys the splinters that inevitably arise from sitting so hard on the fence.)
Posted by: pseudonymous in nc | Jul 1, 2007 8:04:22 PM
I do enjoy you, Pseudo, but not that way.
Posted by: Sanpete | Jul 1, 2007 8:36:24 PM
For Sanpete to pretend that he had no idea ---or, to put it more precisely, no fairly reliable hope ---that the Bush appointees would vote pretty much **exactly** as they have, and that anyone who suspected the same **but didn't like it** had no legitimate cause to vote against them, is laughable to anyone who has considered his history of posting here.
Posted by: Captain Goto | Jul 1, 2007 10:57:44 PM
The meaning of "specific political litmus test" is clear enough. It means a requirement that a nominee will vote a certain way on a particular controversial issue.
In that case, Roberts and Alito were illegitmate nominees by your standards and the Senate was obligated to reject them. The DOJ scrutinized their records and were convinced that they would cast reactionary votes on every issue of interest to Bush. Why you think the Senate "failed" to show that I have no idea, and what;s even sillier is that under the norms you prefer it would be impermissable to even discuss it.
Posted by: Scott Lemieux | Jul 1, 2007 11:51:09 PM
For Sanpete to pretend that he had no idea ---or, to put it more precisely, no fairly reliable hope ---that the Bush appointees would vote pretty much **exactly** as they have
Huh? I pretend that?
and that anyone who suspected the same **but didn't like it** had no legitimate cause to vote against them, is laughable to anyone who has considered his history of posting here.
If only I could remember my own history here as well as you apparently do, then I might be able to make sense out of this. If you want the Court to be no more than a reflection of the political views of the President and Congress (Rooselvelt style), then your view is fine. If you want the Court to be above or beside all that, like a third branch of government, to the extent possible, then there's an obvious problem with it.
The DOJ scrutinized their records and were convinced that they would cast reactionary votes on every issue of interest to Bush.
Certain people at the DOJ may have been persuaded of that, as were certain Senators, but it wasn't something the nominees were required to commit to. Senators tried to but didn't show that the nominees were asked about how they would view particular controversial issues, or that they were committed to a particular outcome on any controversial issue. The nominees denied both. Nothing wrong with discussing those issues in the confirmation hearings.
Posted by: Sanpete | Jul 2, 2007 12:12:23 AM
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