The Washington Post’s editors invoke the saying that “two wrongs don’t make a right” in arguing that Republicans should grant deference to President Obama’s judicial nominees, even though Obama himself, as a Senator, refused to accord such deference to President Bush’s nominees. The Post has “standing” to make this argument. It consistently urged Democratic Senators to defer to President Bush’s nominees and supported the confirmation of John Roberts and Samuel Alito.
The Post’s “two wrongs” argument misses the point, however. It should be axiomatic that the standard for confirming judicial nominees must be the same regardless of which party the president who picks them belongs to. The “deference” issue is more controversial. There are pros and cons to granting the president great deference and pros and cons to granting him very little.
The slogan “elections matter” isn’t terribly helpful in adjudicating among these competing standards. Even under a standard that gives the president little deference, he still gets to pick the nominees and put the power of the White House and its public relations apparatus behind them. Moreover, Senators are also elected. Under a great deference standard their elections are made not to matter.
On balance, I believe that a high deference standard serves the nation better. But a low deference standard is preferable to a regime in which one party’s nominees benefit from great deference and the other party’s don’t. That’s the regime we will have if Republican Senators grant a high degree of deference to President Obama’s selection of Judge Sotomayor.
Thus, the issue isn’t really Obama’s vote against confirming Roberts and Alito. Rather, it’s the fact that the Senate Democrats as a group set a new standard under which the president receives very little deference. Nor is the issue tit-for-tat. Rather it’s ensuring that a consistent confirmation standard is applied to nominees for positions of great power. Such consistency is required if, over time, elections are going to matter — rather than be trumped by gamemanship — in determining the make-up of the federal judiciary.