SCOTUS confirmation hearings and democratic hypocrisy

let’s talk about some history here. throughout the whole history of the supreme court’s nomination and confirmation process, the battles over proposed nominees drew no blood and took no captives. this continued through the confirmation hearings of justices ginsburg, breyer, and o’connor. source material for the following history comes from here. (also linked below)

what happened in ginsburg’s hearings has set a precedent for the confirmation hearings of both chief justice roberts and future associate justice alito by restricting the amount of information that nominees will reveal in their confirmation hearings. (don’t expect this to change any time soon…) justice ginsburg was president clinton’s pick for the court in march of ’93. some of the senate republicans such as william cohen of maine did have some ideological concerns with her. here’s the test cohen applied to her nomination, courtesy of HNN. “…Cohen suggested during the hearings that judicial ideology should be used only to determine if the nominee’s philosophy is ‘so extreme that it might call into question the usual confirmation prerequisites of competency and judicial temperament.'”

that’s really the important question the senators should be asking about all potential SCOTUS nominees. is the nominee qualified to sit on the court? another question would be: does he/she have the judicial temperament to apply the law impartially in all cases they may hear on the court, regardless of their ideology? that’s the kind of justice who should be on the court, and i believe that based on his past history and judicial record, judge alito can be this kind of justice.

apparently, cohen and the other republicans found that justice ginsburg’s nomination passed that test. even though she answered a limited number of questions about ideology, this didn’t seem to bother the republicans all that much. she was confirmed by the senate by a vote of 96-3 (with Sen. Hatch being one of the opposing votes) even though the republicans absolutely knew what they were voting for. so much for republican obstructionism in that hearing.

justice breyer is another good example. the republicans, for all intents and purposes, also allowed this justice to be confirmed without much of a fight. they had some concerns about him too, including a lack of commitment to private property rights, his opposition to prayer in public schools and at public schools’ graduation ceremonies, not to mention a possible conflict of interest involving lloyd’s of london investments. even under that long list of concerns, he managed to garner only 9 opposition votes.

then there is o’connor herself. she also had no problem getting confirmed to the court. the vote was 99-0…no significant opposition to her nomination was present in the final vote. even though it was pretty clear what her views were on certain issues, it didn’t keep her from sitting on the supreme court. it’s interesting to note that at the conclusion of her tenure on the court, the following comments were made about her.

from the WaPo:

“We have a living Constitution. Her name is Sandra Day O’Connor, and thank God she’s retiring,” Kevin J. “Seamus” Hasson, founder and president of the conservative Becket Fund for Religious Liberty, said yesterday.

“Her support for separation of church and state was not consistent,” said Barry W. Lynn, executive director of the liberal Americans United for Separation of Church and State.

here you have the predictable conservative response to o’connor and the supreme court rulings she made. may i just take issue with fellow conservatives here for complaining after the fact here? a good time to make an issue out of it would have been before she was confirmed, not after. but i digress…

so barry lynn wasn’t happy with o’connor either. i’m not sure exactly what kind of justice he would ever be totally pleased with. if he wasn’t pleased with john roberts, it’s not hard to predict what he would say about judge alito. in general, i tend to support anybody opposed by barry lynn, just on principle. but i think there are some good arguments to be made for judge alito. it may be true that he shares many of my beliefs and values, but i also believe based on his past rulings that he would apply the law based on precedent and not on’s the point. if ideology didn’t keep ginsburg, breyer, and o’connor from being confirmed by the senate, the standard shouldn’t have changed for chief justice roberts or judge alito.

why is it only acceptable to confirm justices who mirror the views of the democrats, regardless of the nominee’s experience or qualifications? if that’s not what the democrats are arguing, perhaps they need to be more clear about what kind of justice they would accept. it doesn’t appear that they would accept someone with a strict interpretation of the constitution under any circumstances, so all this distress and disappointment with the Bush pick doesn’t mean a heck of a lot. they knew what was going to happen, and they will oppose the president in this, just the way they have been doing throughout his presidency.

if there are valid concerns about judge alito’s record, let’s put them on the table. i have no problem with examination of his record and past rulings to try to determine how he might rule on the court. that’s a fair critique to make. if there are logical reasons why judge alito wouldn’t be qualified enough or competent enough to sit on the court, then that’s a legitimate argument not to confirm him. otherwise, the senate should do what they have done in the past and judge ideology in the context of cohen’s test. if justices ginsburg, breyer, and o’connor could pass it, there shouldn’t be any problem with judge alito.

michelle malkin has more specifics on alito here.

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