John and the estimable Andy McCarthy have been discussing what standard Republican Senators should apply when voting on a Supreme Court nominee of a Democratic president. I’ve argued many times that Republicans must apply whatever standard the Democrats use when a Republican president makes a Supreme Court nomination. For if the two political parties don’t employ the same standard, one of them will have an unearned advantage when it comes to what is arguably our most important institution.
The standard used by Democrats (including President Obama before he was president) is that it’s appropriate to vote against a nominee based on nothing more than pure political disagreement. It was on this basis that 40 of 44 Democrats voted against Justice Alito. So that’s the standard Republicans should adhere to now.
The question of what standard would be best in the abstract is purely an academic exercise at this point, but let me offer these observations.
The Constitution offers no meaningful standard, so we are free to decide the question based on what makes sense and what has worked. Throughout our history, the president was granted great deference on Supreme Court appointments, and this approach seemed to work okay. Moreover, it made sense back in the 18th century to fill slots in an “undemocratic” branch almost entirely through the input of the president, whose connection to the electorate was closer than that of Senators who at the time were elected by state legislatures.
The deference regime crumbled fairly recently when Democrats came to rely so heavily on the Supreme Court to bring about changes they could not enact through the normal political process. With the stakes thus raised, the Democrats felt they needed more of a say even when they didn’t control the executive branch.
There is, in fact, a strong argument that, with the Supreme Court as influential as it is now, and with Justices now vetted to the point that they can reasonably be expected to adhere to the philosophy of the president who appoints them, Congress should have a major say in the selection of Justices. Such a say implies the prerogative to vote down nominees based solely on considerations of political ideology.
But I would prefer the old system of great deference. For if the selection of Supreme Court Justices becomes, in effect, a joint venture of the executive and the legislature, there will be many times when it is only possible to confirm a wishy-washy jurist or a “stealth” nominee. And, in my view, these nominees don’t make the best Justices.
A system of deference will yield a Judge Bork or a Justice Scalia. A system where Congress denies deference will yield a Justice Kennedy or a Justice Souter. And one can only imagine who (if anyone) such a system would have produced if the vacancies President Bush filled had come open in 2007.
But the days of deference are over and Republicans would be fools to even think about reinstating them during the presdency of Barack Obama.