This piece by Lincoln Caplan in the Washington Post’s Outlook section is probably the worst discussion of the confirmation wars I’ve seen. Caplan is the editor of Legal Affairs magazine. I’m not familiar with the publication. However, I remember Caplan for his series in the New Yorker several decades ago in which he found it noteworthy, and somewhat scandalous, that President Reagan’s Solicitor General was actually trying to get the Justice Department to file Supreme Court briefs that were consistent with Reagan administration views. This is the perfect time for someone so stridently anti-democratic to take the floor on behalf of Senate Democrats.
Caplan argues that the confirmation wars are really an assault on the judiciary. But he never pins down the nature of the assualt. Is it an attempt to create a judiciary that doesn’t believe in judicial review? Or an attempt to pave the way for excessive judicial review that will “jeopardize the Federal Reserve Board, the Social Security program, environmental protection, and many other safeguards of modern governance”? Caplan’s answer seems to be all of the above.
But how does this alarmism relate to the nominees being filibustered? I doubt that Caplan can point to any statement or action by any of the nominees (some of whom are judges and/or state officials) that suggest either a repudiation of the concept of judicial review or a desire to strike down laws like Social Security. Nor have the Democrats done so. Maybe Caplan thinks that abortions without parental notification are a safeguard of modern governance.
Caplan then asserts that the filibusters are necessary to block judges who are not “impartial,” by which he means judges selected with an eye towards their ideology. But “impartial” doesn’t mean devoid of ideology, at least not unless one wants to define the term in a way that would render virtually every judge “partial.” Ideology, as used by Caplan, is just a loaded term for philosophy of judging. But one would expect an appellate judge to have a philosophy of judging — the judges nominated by Democratic presidents certainly do. Caplan absurdly asserts that there are no liberals on the Supreme Court, not even Justice Ginsburg. But he doesn’t deny that she has a philosophy of judging.
Even obstructionist Democratic Senators like Charles Schumer don’t claim that it’s improper to have a philosophy of judging, nor do they claim that that the philosophy can’t be conservative. Schumer says he opposes right-wing judges who are outside of the conservative mainstream. This is a coherent position — his problem is showing that the nominees in question fit that description. Caplan’s problem is that his argument is incoherent except to the extent that he’s saying that those with judicial philosophies other than his must be opposed because they are wrong.
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