Saturday, July 09, 2005

The fighting liberals

There's an effort underway to take philosophy (or ideology) out of the Senate's upcoming confirmation process for Bush's soon-to-be-announced nominee to fill the vacancy on the Supreme Court and to replace it with more limited considerations of experience and character. That is, if a certain nominee has the requisite experience and character, why bother examining his (or her) judicial philosophy? This is what was behind Bush's well-received, if misunderstood, statements in Denmark the other day. Bush is credited (and I credited him myself here) for defending Gonzales and for calling for greater civility (and here). In fact, he advised senators not to listen to "the special interest groups, particularly those on the extremes that are trying to exploit this opportunity" and called for "a good, honest debate about the credentials of the person [he] [puts] forward, no matter who he or she is, and then give the person an up or down vote". That is, don't listen to those on the left and right who are talking judicial philosophy, just focus on "credentials" and vote (note: "up or down" means no filibuster).

If this means that Bush is set to nominate Gonzales, so be it. As I've said before, I'll support Gonzales as the least bad of all the leading candidates. But E.J. Dionne makes the case in today's Post that a fight over philosophy is a fight worth having, not least because with this battle over O'Connor's replacement (along with a likely battle over Rehnquist's replacement in the near-future) on the Supreme Court the right threatens to assume control of all three branches of government:
Should a temporary majority of 50.7 percent have control over the entire United States government? Should 49.3 percent of Americans have no influence over the nation's trajectory for the next generation?

Those are the stakes in the coming fight over the next Supreme Court justice. The much-maligned "outside groups" preparing for battle over President Bush's choice deserve credit for openly acknowledging this struggle for power...

Paradoxically, that's why the White House is telling its right-wing allies to shut up. It's not just that the president is understandably peeved over conservative attacks on his attorney general, Alberto Gonzales. By being so vocal, the conservative groups are making clear what the administration would like to obscure: that this is a political and philosophical choice. We are deciding whether one ideological orientation will hold sway over all three branches of the federal government.

That means that the most important questions for senators to ask a nominee have to do with his or her philosophy. It is preposterous to rule such questions out of bounds. It's also hypocritical...

In other words, to win an ideological fight and take control of "all levers of the federal government," Republicans will insist that the battle has nothing to do with either power or ideology. The conservative "special-interest groups," no less than their liberal counterparts, have so far refused to play this misleading game...

Those who say that politics, philosophy and "issues" shouldn't be part of the confirmation argument typically bemoan the prospect of a mean and dirty fight. But if the only legitimate way to stop a nominee is to discover or allege some personal shortcoming, all the incentives are in favor of nasty ad hominem attacks. If senators disagree profoundly with the philosophy of a nominee who happens to be a perfectly decent human being, isn't it far better that they wage their battle openly on philosophical and political grounds? Why force them to dig up bad stuff on a good person? Paradoxically, denying that politics matter in confirmation battles makes for uglier politics.

Dionne shows that Democrats have actually done quite well in terms of the popular vote: "Consider that since 1992 the Republican presidential vote has averaged only 44 percent and the vote for Republican House candidates has averaged roughly 48 percent. In 2004, with large margins in some of the largest states, Democratic candidates for the U.S. Senate received nearly 5 million more votes than their Republican opponents." Republicans may control the White House and Congress, and all the Democrats may have is the filibuster, but the U.S. is not a one-party, one-philosophy state.

So it's time to talk philosophy and for Americans to know exactly what is at stake here. I have no doubt that the leading candidates to replace O'Connor are qualified jurists. That's really not the issue. But if the nominee is Luttig or McConnell or Gonzales or some old-fashioned conservative (see here) or someone still below the radar of speculation, there should be an open debate about what that nominee stands for, what his or her decisions in lower courts mean, what his or her political history is, and what can be expected from him or her on the Supreme Court (where he or she will have enormous power to change the course of American life as we know it).

Conservatives know what they want and they're pushing Bush to nominate one of their own. Liberals, in turn, need to be prepared to fight for what they believe in.

Because philosophy matters. Even when there's an effort to silence it.

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  • I agree with Dionne. The time that we can simply discuss "qualifications" is past. For better or worse, the courts have become major adjudicators of American life and it's simply naive to assume that the judge's judicial philosophy (or for that matter his or her political philosophy) won't influence his or her judicial performance. I think judicial philosophy and ideology is a valid criteria as long as it doesn't morph into a question of how would you decide a particular issue that comes before the court.

    By Anonymous Anonymous, at 10:56 AM  

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