Wednesday, May 25, 2005

The Next Step

Alright, so I've now written twice on the filibuster controversy, all without the aid of The Volokh Conspiracy. I'm a big blogger boy now! But I should not have rushed them, for though late to the party they've made some excellent posts on how this deal could play out during the inevitable Supreme Court Justice battle.

Orin Kerr links to the latest Debate Club discussion, which is on whether or a Supreme Court justice should be expected to be approved 100-0. The idea, under this paradigm, is to nominate someone "approved by conservatives, lauded by moderates, and acceptable to liberals." Unfortunately, according to Kerr anyway, the participants have so far named only persons who either would be rejected by conservatives, or are already dead. The name Kerr mentions is Judge John Roberts of the DC Circuit (more on him in a moment). Obviously, the idea appeals to me, for unlike Powerline I like consensus and dislike taking every political disagreement as an opportunity to launch a political nuclear war. Whether or not it is feasible is another matter--I can unfortunately see a bloc of Democrats voting against virtually any nominee Bush makes, just for the sake of fighting it (Lindgren makes this point below). I also can see Bush nominating a controversial nominee just to provoke a fight. So while the idea is great in theory, it is not going to see daylight anytime soon. But that won't stop me from blogging bitterly when either the Democrats filibuster Arlen Specter, or Bush renominates Robert Bork.

Jim Lindgren then posts (and then again!). In the first post, he writes:
But -- before THE DEAL -- I thought that anyone that Bush could appoint would be filibustered, no matter how moderate. He or she could be a decent, reserved, open-minded, unprejudiced, intelligent conservative such as Judge Michael McConnell. Or he could even be a judge who was pro-affirmative action and (in his opinions, at least) pro-abortion such as Alberto Gonzales. Indeed, a high staffer with one of the major public interest groups that the Democrats rely on to evaluate judicial candidates told me to expect an attempt to filibuster Gonzales if he is appointed to the Court, even though she admitted that Gonzales was more liberal than anyone else that Bush could conceivably appoint. In other words, I expected that if Bush appointed someone closer to the political center than Clinton's nomination of Ruth Bader Ginsburg, that nominee would nonetheless be filibustered as an extremist. (By the way, McConnell in particular would seem to be an almost ideal candidate for Chief Justice, with a calm, responsible, principled manner that should smooth over ideological differences on the Court. According to those who know John Roberts, he would be another.)

And in post number two, he discusses the objections of certain liberal advocacy groups to Judge Roberts.

This brings me to something I've wanted to say for a long time. I've read Judge McConnell's works, and have been incredibly impressed. The man is frankly brilliant. I support the Democrats on the filibuster option, and am willing to say it should have been used on nominees like Judge Rogers. If the Democrats decide to filibuster a McConnell nomination, I will be outraged, and guarantee you will hear about it on this blog.

As for Judge Roberts, I'm less sure simply because I know less about him. I wrote in this earlier post that I had received endorsements of Judge Roberts from people I respect greatly. Kerr (again) and JNV also give votes of confidence. On the other hand, a very large portion of the groups Lindgren lists as opposing Roberts have "Jewish" in their names, which makes me cautious on his Church/State jurisprudence. Basically, with him I'd say fine if he's replacing Rehnquist, but I'd be far more skeptical if he replaces a moderate or liberal.

On the other end of things, there is this position taken by the National Review (linked and endorsed by Southern Appeal):
Under what possible circumstances could the Democrats stop Pryor from being elevated to CJ without breaking the deal? Here is the logic: Only "extraordinary circumstances" warrant stopping candidates; Pryor (and Brown and Owen and all the others placed on the C of Appeals by GWB) have not been stopped; Therefore, these nominations are not "extraordinary."

Pryor for CJ!!

Where the VC is among the "let's try and agree" sect, this is the "let's pick a fight" squad. I don't agree that filibustering Pryor for a Supreme Court seat would be breaking the deal (if someone wants to challenge me on it, I'll explain why, but it's late and I need sleep). But more importantly, I think it is precisely the wrong sentiment--Supreme Court nominations should not be an excuse to spit in the opposing party's face. The fact is there are conservative prospects that would be acceptable to folks like me--why not use them, rather than deliberately going out and trying to spark a new front of partisan warfare?

Basically, it comes down to this for me. I'm willing to endorse a sensible conservative nominee to the Supreme Court. That's right, I said "sensible" not "moderate." In exchange, I expect President Bush to put the unity of the country ahead of the whims of the rabid right and nominate one.

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