Tuesday, May 15, 2007

Nice Guys Finish....

Jonathan Adler comments on the apparent upcoming confirmation fight over D.C. Court of Appeals nominee Peter Keisler:
In my opinion, Keisler deserves confirmation on the merits. I also believe Senate Democrats should begin to consider how they would like Democratic judicial nominees to be treated in the future, and set an example. This would be a welcome step toward a de-escalation in judicial nomination fights -- a step the next President (whomever he or she is) might appreciate.

I express no opinion as to whether Judge Keisler should be confirmed on the merits. However, there is a significant flaw in the "set an example" point. It assumes that Republican treatment of a future Democrat's nominees will in any way be influenced by how Democrats behave now.

Even were I to believe that a gesture of good faith by Democrats regarding judicial confirmations would be met with future "de-escalation" by the GOP, there is no way Senate Democrats believe it. They have been alive over these past few years of Republican control, after all. I suspect they think that treating Bush's nominees with respect and deference will yield much the same results as adopting slash-and-burn tactics: either way, Senate Republicans will show no restraint or fairness towards a Democratic President's nominees.

Does this mean I think that Democrat's should just get their licks in while they can? Not necessarily. But it does mean that if, for any reason, they think that Keisler will be the type of judge they don't want on the D.C. Circuit, they might as well block and delay him. It won't change the future any--and to be blunt, it's the GOP who will need to make the first move of good faith if the poisonous atmosphere they've created is going to break.


PG said...

This actually is the single area where I can give a tuppence of credence to Republican whining about how awfully bitter Democrats are. We did not get anything as bad in Ruth Bader Ginsburg's or Stephen Breyer's confirmations as we did with Alito's. For what was coming across as plain character assassination, as opposed to sincere concerns about judicial philosophy (Bork's inability to square Brown v. Board with his beliefs) or personal behavior that violates the law (Thomas's alleged sexual harassment), I think the Democrats struck the first blow regarding Supreme Court nominees. Roberts wasn't treated too badly (how could you NOT ask about the french fry opinion?! and of course opinions are fair game for a wannabe Justice), but the attempt to paint Alito as a racist by association was genuinely ugly.

David Schraub said...

Didn't Orrin Hatch say that he specifically recommended Ginsburg and Breyer as good nominees for Clinton?

PG said...

I think Hatch is friends with Ginsburg's husband, but his recommendation of Ginsburg and Breyer as nominees who would arouse little opposition still doesn't mean that the Republican Senate minority *had* to behave politely. The Democrats didn't when they were in the minority for Alito's nomination -- Kerry tried to filibuster him. And as I said, I wouldn't be bothered by opposition based in Alito's actual jurisprudence; it was the character attacks that bothered me.