More “heads I win, tails let’s call it even” thinking from a partisan Democrat

E.J. Dionne keeps trying, but he never gets any better. His latest contribution to the debate over the judicial nomination process is his suggestion that because President Bush obtained only 51 percent of the vote in 2004 (“a temporary majority,” Dionne calls it), he should not control the entire United States government for the next generation.
This argument fails at several levels. First, the confirmation of one, two, or even three Supreme Court Justices by a president whose majority is temporary is most unlikely to confer control of the Court for a generation. The Court is like an archeological dig. Most (but not all) presidents leave one or two judges of their choosing on top of the prior layers, and together these layers comprise the Court for a while. The real question is whether President Bush will become the first twice-elected president (in my memory, anyway) not to leave Justices of his choosing on the Court.
Second, Dionne’s argument fails the same test that trips up nearly all Democratic arguments on this subject — it was never applied when Democrats were in power. Did anyone suggest that President Clinton could not appoint liberals to the Court because he had failed to obtain a majority of the votes (I guess Dionne should call Clinton’s margins “temporary pluralities”)? Did anyone say that Kennedy should not be permitted to appoint liberal Justices? Not that I recall; and if someone did, that person was ignored as Dionne should be. As always, the Democrats want to change the rules for no other reason than that the shoe is on the other foot.
There are two plausible ways our democratic society can go about selecting Supreme Court Justices. Under one approach, the party in power is able to place Justices on the Court who are in tune with its general philosophy about judging. Because Justices tend to stick around much longer than parties are able to stay in power, this approach yields an ideologically diverse Court, but one which should (but right now probably doesn’t) reflect about a quarter of a century’s worth of public opinion. The other model is to make the selection of Justices a truly collaborative effort between the two parties, in some fashion. These days, this approach (if it could produce nine Justices) would yield a Court full of non-descript moderates and difference-splitters.
The former approach is the one we have always used. How well it has worked is subject to debate. But there’s no reason to think that the latter approach would work better, especially since the Democrats never advocated it until they started losing elections semi-regularly, and the Republicans have never advocated it. In any event, the Republicans shouldn’t embrace a rule change that so transparently is designed to deny them the fruits of electoral success.
Dionne is right about one thing — the Democrats should focus critically on the judicial philosophy of Bush’s nominee[s]. And nominees should answer questions about their philosophy to the extent that prior practice (e.g., the confirmation hearings of Ginsburg and Breyer) warrants. But Democrats should not investigate the private lives of nominees. For example, they should not investigate what films a nominee rents, as they did with Robert Bork. And Dionne is completely off base in suggesting that Democrats do this only because nominees don’t reveal enough about their philosophy. First, that’s no excuse; second, the Democrats slimed Bork even though everyone had comprehensive knowledge of his philosophy.
Democratic Senators should also vote against nominees whose philosophy they (as opposed to Nan Aron and Ralph Neas) find too extreme. But they should not deny any nominee an up-or-down vote, and Dionne makes no attempt at an argument that would justify doing so. Finally, if/when the Democrats embark on their filibuster, the “temporary” majority party should exercise its right to change the Senate rules and put an end to the obstruction.
Ed Whelan finds fault with Dionne’s piece for different but powerful reasons.