Ted Olson’s bad idea

The estimable Ted Olson, writing in the Wall Street Journal, argues in favor of Republicans giving Judge Merrick Garland, President Obama’s Supreme Court nominee, “a good look, a respectful hearing and a vote on the merits.” More broadly, Olson calls for “a pact. . .among responsible Republican and Democratic leaders to give well-qualified Supreme Court nominees of either party a hearing and a vote within 120-180 days of a nomination.”

In this way, says Olson, the rules for dealing with Supreme Court nominees would be the same for both parties. In addition, this approach would increase respect for Supreme Court decisions.

Olson worries that:

Demeaning slugfests have now become the regular order. An average of 33 senators voted against the confirmation of the last four Supreme Court nominees, each of whom was exceptionally well qualified. If a third of the Senate pronounces someone like John Roberts or Elena Kagan unfit to sit on the court, how is the public supposed to accept controversial decisions once these nominees assume the bench?

I see several flaws in Olson’s case, the first of which is with his premise. In my view, the public should not “accept controversial decisions” by the Supreme Court (though the specific rulings should be obeyed). Rather, the public should view them for what they are — political manifestos.

I’ve argued that the four liberal members of the Supreme Court constitute a voting bloc. In big cases, they march in lockstep in support of the left’s transformative agenda.

Senate contentiousness over Supreme Court nominees is a good thing. It highlights the crucial role the Supreme Court has assumed and the highly partisan nature of the way it carries out that role.

The second objection to Olson’s proposal is that it won’t do what he (misguidedly) wants to accomplish. His pact is designed to make sure qualified nominees get hearings and an up-or-down vote. But what he decries is the large number of votes against qualified nominees like Chief Justice Roberts and Justice Kagan.

That trend will continue as long as the Supreme Court plays such an outsized role and does so in such a partisan fashion; hearings and a vote will produce more contentiousness than the behind the scenes dance over Garland is generating.

If the Senate were to vote on Garland’s nomination, it’s not clear he would be confirmed. If he were, it would be over the “no” vote of at least 45 Republican Senators.

The third objection is that the pact Olson contemplates would be worthless except as a means of advancing Garland’s nomination. Who are the “responsible Democratic leaders” in the Senate who could be trusted not to obstruct future Republican nominees? How would one ensure that they and their successors will abide by the pact?

Indeed, Olson’s pact comes with an obvious escape clause. Only “well-qualified” nominees are promised a hearing and a vote. The left increasingly is unable to differentiate between “well qualified” and “agrees with us.”

This is apparent on college campuses where conservative views are considered beyond the pale and where the scholarship of “well-qualified” conservative academics seeking positions is deemed inferior on ideological grounds.

Finally, implicit in Olson’s piece is the view that a president’s judicial nominees should receive great deference from the Senate. Hans von Spakovsky has argued strongly against this view. As he puts it:

Senators who believe that the president’s choice of judicial nominees should be given substantial deference are deeply mistaken. They owe deference to the Constitution, not the president. The importance of preserving the rule of law and adhering to the Constitution is too important for them to continue to hold this manifestly wrong — and frankly dangerous — view.

Here’s the thing, though: Ted Olson’s article is flawed at so many levels that his proposal should be rejected regardless of whether one agrees with Hans about deference.