The Alito rule, fact or fiction?

My friend Dafydd at Big Lizards disagrees with my claim that the Democrats’ party-line vote against Samuel Alito has created an “Alito rule” under which we should expect similar party-line votes by Republicans against liberal nominees appointed by Democratic presidents. Dafydd may be right — I’ve heard other very smart people say the same thing. But I think he overlooks two points that may make my prediction more plausible than he supposes. First, the Republicans have played hardball against Democratic judicial nominees at times in the past. They did not do so with Ruth Bader Ginsburg and Stephen Breyer, but they toughened up during the second Clinton administration with respect to a number of court of appeals nominees. The Democrats were wrong during the confirmation wars of the past five years to claim that they were only matching Republican obstructionism, but they were not wrong to point to the existence of some Republican obstructionism.
Second, Dafydd points out that Republican politicians tend to “take the high road, following their own consciences, whatever that may entail.” Thus, “conservative Republicans. . .vote against the president’s position on any number of issues, from drilling in ANWR to reforming Social Security to banning partial-birth abortion.” But these are all issues of pure substance. As I tried to explain in my post asserting an “Alito rule,” the criteria for voting on judicial nominees has a procedural element to it, at least in the sense that it’s more important to have a consistently applied rule than to have any particular rule. I think Republican politicians will grasp this. If not, for what it’s worth, conservative bloggers will be there to enlighten them.


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