Evolving standards

An entertaining sideshow to the Roberts confirmation process is the descent into near intellectual incoherence of some of America’s most distinguished law professors. Duke University’s Erwin Chemerinsky takes his turn today. He argues that Democrats should oppose Roberts because having Roberts on the bench would likely change the law. Under that approach, constitutional law would never change unless Congress incorrectly guessed the views of nominees. Our “living Constitution” itself would be in jeopardy.
Chemerinsky argues that precedent exists for opposing Supreme Court nominees who are likely to dramatically change the law. He is correct to cite the Bork case in this regard (his other examples, such as Clarence Thomas, don’t hold up as well). But he ignores the fact that, at least in modern history, Republicans have never opposed a liberal Supreme Court nominee on the grounds that confirmation would likely change the law. For example, Ginsburg collected all but three Republicans votes even though there could be little doubt that her elevation to replace centrist Byron White would move the Court in a liberal direction, as it has.
A world in which the opposition party opposes Supreme Court nominees who are likely to move the Court in the direction the president desires is not ideal because it would tend to insulate the Court from change, thus increasing its anti-democratic tendencies. However, I can live in such a world, as long as both parties play by the same rules. Chemerinsky might look at a political map of America and consider whether, given the Republican party’s natural majority in the Senate, he wants to live in that world.
Via Real Clear Politics.

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