Senator Joe Biden contends that President Bush should pick “a nominee who unites.” Biden’s resort to this locution illustrates how far off the rails the Democrats have taken this process. It has never been the role of a judicial nominee (or a judge) to “unite” the country. Judges are supposed to decide cases on their legal merits. I doubt that one could find any statement that praises a prior Supreme Court nominee on the theory that he or she would unite us, or that praises a president for uniting us through his judicial appointments. For example, it’s unlikely that anyone claimed that Justice Ginsburg would unite us, and such a claim would have been false. It’s only in the context of the Democrats’ vision of the Court as a group of unelected politicians that it’s quest for “uniters not dividers” (a political concept) might make sense.
Biden says that about 20 percent of those nominated by presidents for the Supreme Court “were prevented” from becoming Justices. But none has ever been prevented from taking office due to a filibuster. (The only filibuster of a Supreme Court nominee was bi-partisan, lasted for four days, and involved corruption issues). So Biden’s claim that blocking Bush’s nominee is consistent with Senate practice is nonsense.
Equally fatuous is Biden’s contention that the nominee must be “independent and impartial.” If Biden means that the nominee must not have a personal interest that would affect his or her decisions, his statement is trivial. There is no reason to think that Bush will send up a nominee who, Fortas-like, is personally compromised (although, as Ed Whelan has noted, Alberto Gonzales would be barred by virtue of being Attorney General, from deciding some important cases in the short-term). If Biden means that the nominee must have no pre-set philosophy of judging, his claim is absurd. All qualified nominees have such a philosophy.
What Biden really means is that the nominee should be impartial between a view of judging that conservatives prefer and a view of judging that liberals prefer, as Justice O’Connor perhaps can be said to have been. This too is nonsense. No presumption has ever existed in favor of a judging style congenial to “moderates.” If such a presumption had operated in the past, many of our most distinguished Justices would never have served, nor would Justice Ginsburg be serving now. Thus, in calling for a “uniter” and an “impartial independent,” Biden is simulataneously revealing his party’s radically misguided view of the Court’s role and attempting to change pre-existing judicial selection practices and criteria.
Via Real Clear Politics.
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