Let’s take just one line from the Politico story on Lindsey Graham Quin links to below:
“Most of all, he [Graham] said, he wanted to return to the days where ideology was not part of the equation when choosing judicial nominees – citing the 98-0 confirmation of Antonin Scalia in 1986 and the 96-3 confirmation of Ruth Bader Ginsburg in 1993.”
The writer obviously means “confirming judicial nominees,” because Ronald Reagan surely chose Scalia to fortify the conservative bloc on the Supreme Court and Bill Clinton chose Ginsburg to join the liberal bloc. But it’s true: Ideally, presidents of both parties would see their qualified judicial nominees confirmed by bipartisan majorities. Unfortunately, something happened between Scalia’s confirmation and Ginsburg’s: the savaging of Robert Bork.
And in truth, liberals were starting to impose litmus tests on Supreme Court nominees before Bork. Ideology played a role in blocking Richard Nixon’s nominations of George Carswell and Clement Haynesworth. Scalia got a pass in part because of a simultaneous liberal campaign against promoting William Rehnquist. After Bork, liberals borked Douglas Ginsburg and tried to bork Clarence Thomas. They even attempted a mini-borking of Sam Alito.
For Republicans to continue to vote almost unanimously for liberal judicial nominees under these circumstances, when roughly half of Senate Democrats vote against even John Roberts, is an act of unilateral disarmament. It is precisely the strategy that has resulted in Republican presidents nominating a mix of conservative, moderate, and liberal justices while Democratic presidents haven’t nominated anyone to the right of Stephen Breyer since JFK tapped Byron White. (It is, of course, a strategy favored by some Republicans because it keeps the Supreme Court forever one vote short of overturning Roe v. Wade, leaving the pro-life base hungry.)
Secondly, now that the Supreme Court has (unconstitutionally) emerged as the national policymaking body on issues like abortion, affirmative action, the treatment of terror detainees, and to some extent gun control and capital punishment, the confirmation process is the only check on our would-be masters. It simply makes no sense to refuse to ask specific questions on how justices will use their awesome power or to vote to confirm justices who will use that power in ways in which we disapprove.
Finally, since even the mainstream of judicial liberalism routinely produces rulings that violate the Constitution, no votes are not just an option — they are part of a conservative senator’s duty to uphold the Constitution per the oath of office.
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