The confirmation process is gearing up, this summer's DC games. The contender is John Roberts. Who may be...
conservative. There are clues, delicious clues, salacious clues that hint he may be...
conservative. A) He worked for Ronald Reagan. B) He worked for Ken Starr. C) He has been nominated by not one but two Bush Presidents. D) He may or may not be a member of the shadowy league that is the Federalist Society.
To determine whether a man who may or may not be a FedSoc conservative should sit on the highest bench devised by the wisdom of man, there is a
process. The purpose and method of the process differ depending on where in the stream of politics you are. Conservatives want someone literate. That's it. Someone who can read the Constitution. Theoretically, this type of justice would decide little court things on whether the issues at hand was actually in the Constitution primarily by reading it, a theory called
strict constructionism. The procedural criterion then is technical competence. Liberals, as we all love about those quirky li'l devils, want someone who can emanate and/or translate
penumbras. Much like chakras, penumbras are not literal; they radiate from the flowing lifeforce of our living Constitution. The primary procedural concern for liberals is
ideology; they have to see into, probe, even flay the soul of the candidate either to discern his merit or break him and keep him out of office.
John Roberts is even now enwrapped in the gelatinous ooze of our beautiful mating ritual that is judicial confirmation. That means he will be grilled. Grilled over an open flame. In front of CSPAN. And Fox. And Democratic constituents. To show that they know his soul, this tiny band of Democrats will question his toddler's sexual orientation and criticize his wife's fashion sense. They will deride him for being Catholic. They will fault him for both the conservative and liberal cases he has worked. A la Boxer and Rice, Democrats will confirm him through an endless series of random soundbites and buzzwords, repeating the pointlessly and ad nauseum so that everyone on the Daily Show is impressed with their persistence. The unbiased defenders of the living fetal creature that is the Constitution.
Michael Comisky
makes the case for grilling Roberts (the Dread Pirate Roberts!) in today's Baltimore Sun. In a nutshell (not that the article wasn't light enough), why is this necessary? Because the President, and all those that agree with him, must be taught a lesson.
But the best reason for rejecting these claims is that our constitutional system is based on checks and balances. And when presidents try to load the Supreme Court with people who share their political philosophy, senators cannot check and balance the president unless they also consider nominees' views.
If senators do not consider nominees' political views when deciding to confirm or reject them, only 10 people - the president and the Supreme Court justices - can have a real say in the debate over what the Constitution means.
Umm, yeah. So many places to start. First, "checking and balancing" doesn't mean "aimlessly thwarting." The sky is not immediately orange just because the President said it was blue, and pure contrariness isn't a reason for a self-congratulatory "check" on his unilateralism. Second, the
majority of both electors and voters, by handy margins each, elected this President, knowing that justices would be retiring. They knew what they were doing in electing a conservative. Just like they expanded the Republican majority in the Senate. Again -- the voices of the people are in how they
vote. So you have a tiny handful of people trying to block the majority will. In a democracy, only two groups matter. The majority and the individual. The minority does not matter and should not. Everyone has already played their part in forming the Supreme Court. It is not only right but fair to let the President do his job in selecting and the Court their job in deciding. It's not directly up to us anymore.
There are drawbacks to a political confirmation process. A struggle over Sandra Day O'Connor's successor could turn ugly and further alienate a disaffected public. Public confidence in the Supreme Court and Congress could fall as a result. These are the risks we run in a democracy.
But past battles over nominees' ideologies, as distinct from other issues, did not damage the court or Congress, even during the heated clashes over nominees Robert H. Bork in 1987 and Clarence Thomas in 1991.
Yeah, no one thinks this isn't going to be ugly. But, hmmm, I notice a trend in those two hearings. Could it be -- why, they were both conservatives! Nominated by Republicans! With Democratic Senates! Perhaps the divisiveness and hatred turned so very ugly not because of the political bias of the nominees or the nominaters, but because of the Democrats who tried to thwart it. Hmm. I notice he didn't bring up the Lani Guinier nomination debacle (incompetent) or that of the, ahem, partisan ACLU-lovin' Ginsburg. Maybe because, despite being vehemently and rightly opposed to everything Ginsburg believed ideologically, Republicans voted for her (hear that? not just didn't filibuster -- actually voted for her!) because she met their only criterion: competence.
If you'll pardon my boldness, the "risks we run in a democracy" don't include an incivil, hateful, and utterly groundless attack on a man and his family in a grand-standing display down for the fever-swamps of DailyKos. The only risk in a democracy is losing an election. Y'know, the
democracy part of the republic. Otherwise, I expect the functions of the Constitution to kick in. The "risk" to liberals is apparently circumventing the system to make a 15-second sound clip on CNN.
Most Americans seem to prefer the risk of an unpleasant confirmation fight over the alternative of allowing just 10 people to decide what the Constitution means. Two cheers for democracy.
Sigh. Perhaps those cheers would be louder if the majority of the voters in that democratic election were allowed to be heard without a prolonged and “unpleasant” hearing.