The H word

E.J. Dionne looks at the Miers near-fiasco and discerns, you guessed it, “hypocrisy.” But, for once, Dionne is not completely wide of the mark. In some respects, though, he fires blanks. For example, he recycles the hypocrisy charge in connection with the Bush v. Gore decision in 2000, stating that “conservatives who had long insisted on deference to states’ rights put those commitments aside when doing so would advance the political fortunes of one of their own.” Since Dionne offers no real analysis, I won’t respond in detail. But it’s not a violation of states’ rights for the Supreme Court to reverse an erroneous state court decision. And why doesn’t it ever occur to people like Dionne that the charge of hypocrisy runs both ways here? The day Dionne writes this sentence — “liberals who had long criticized deference to states’ rights urged such deference when doing so would advance the political fortunes of one of their own” — is the day his hair-trigger allegations of hypocrisy will deserve to be taken seriously.

Dionne’s criticism over the way the administration handled religion during the Miers process has more merit. However, Dionne is sloppy in his allegation of hypocrisy. The Bush administration talked up Miers’ religion but, to my knowledge, had not denounced references to the religion of John Roberts and others (other conservatives had, and they were mostly unhappy, as I was, with the White House for playing the religion card in Miers’ case). So the proper complaint against the administration was not hypocrisy, but talking up religion. I guess Dionne can’t resist the H word.

Dionne found the manner of Miers’ exit “disingenuous,” and I agree. In addition, as I said at the time Charles Krauthammer proposed seizing upon an impasse over documents approach, it has the potential for causing future mischief.

Finally, we get to the most important issue — the unwillingness of conservatives to defer to the president’s selection of a nominee on ideological grounds. As I pointed out before Dionne did (I’m pretty sure) there’s a huge tension between (a) arguing for five years that liberal Democrats should, out of deference to the president, vote to confirm qualified conservative nominees and (b) arguing that conservative Senators should vote against a president’s nominee because she might be a conservative but is probably a centrist. Many conservatives avoided this trap — e.g. by arguing that Miers wasn’t qualified or by arguing not that the Senate should vote Miers down but that she should withdraw. Some did not. Some perhaps were insincere in the arguments they used to avoid the trap. To my knowledge, no Republican Senator stated that he or she would vote not to confirm Miers. Thus, no Republican Senator can legitimately be accused of hypocrisy on this score.

Once evidence appeared that Miers might hold a liberal judicial philosophy, some conservatives (including me) argued that, if she could not satisfactorily explain herself, she should lose the votes of conservative Senators. This was not hypocrisy. There can only be one set of rules for voting on judicial nominees. If liberal Democrats persist, as they have, in voting against qualified conservative nominees on purely ideological grounds, conservative Republicans must do the same. We can’t have Ruth Bader Ginsburg waltzing to confirmation with 90 plus votes while conservative nominees struggle to capture a single liberal Democratic vote. Some ground rules are better than others when it comes to confirming judges, and an approach that involves deference to the president has much to recommend it. But the most important thing is that the rules be consistent so that the ability of the parties to confirm their nominees is a function of their standing with the public, not more favorable rules. As I wrote on the day that John Roberts, probably the most highly qualified judicial nominee in recent memory, obtained the votes of only half the Democratic Senators and fewer than half of the Democratic liberals:

The willingness of half the Senate Democrats to vote against a candidate of Judge Roberts’s ability, accomplishment, and temperament is a disgrace, and one that will likely change the “rules of engagement” with respect to the Supreme Court confirmation process for years to come.

The chickens unleashed by years of Democratic irresponsibility (which Dionne applauded throughout) are coming home to roost. No wonder Dionne is unhappy.

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