September 29, 2005

78.

Great! Roberts is confirmed by a margin of 78 to 22. As to those 22 Democrats who voted no, they have openly embraced an ideological view of the Court from which they can never credibly step back. For them, appointing Supreme Court Justices is a processes of trying to lock outcomes in place, and we shouldn't believe them if in the future they try to say otherwise.

UPDATE: Correction to the number made. And here's the list of the 22 Democrats:
Evan Bayh of Indiana
Joseph Biden of Delaware
Barbara Boxer of California
Hillary Rodham Clinton of New York
Jon Corzine of New Jersey
Mark Dayton of Minnesota
Dick Durbin of Illinois
Dianne Feinstein of California
Edward Kennedy of Massachusetts
John Kerry of Massachusetts
Frank Lautenberg of New Jersey
Barbara Mikulski of Maryland
Barack Obama of Illinois
Harry Reid of Nevada
Charles Schumer of New York
Debbie Stabenow of Michigan
Jack Reed of Rhode Island
Tom Harkin of Iowa
Daniel Inouye of Hawaii
Paul Sarbanes of Maryland
Maria Cantwell of Washington
Daniel Akaka of Hawaii

I hope no one on that list is running for President.

70 comments:

Simon said...

And the seventh angel poured his bowl into the air, and a voice cried out from heaven, saying: "It is done."

I really hope I'm wrong about Roberts.

Apart from the first one-word sentence, I agree with Ann's post. You have to hand it to Bush, whatever you think about Roberts as a potential Chief Justice, his nomination was a political masterstroke; the Democratic response was incoherent and divided, splitting precisely down the middle on how to send a message. In doing so, the message they send is, "we can't organize our way out of a paper bag".

Gerry said...

Ann,

The one independent (Jeffords) voted yes. All 22 noes were Democrats.

Akaka (D-HI)
Bayh (D-IN)
Biden (D-DE)
Boxer (D-CA)
Cantwell (D-WA)
Clinton (D-NY)
Corzine (D-NJ)
Dayton (D-MN)
Durbin (D-IL)
Feinstein (D-CA)
Harkin (D-IA)
Inouye (D-HI)
Kennedy (D-MA)
Kerry (D-MA)
Lautenberg (D-NJ)
Mikulski (D-MD)
Obama (D-IL)
Reed (D-RI)
Reid (D-NV)
Sarbanes (D-MD)
Schumer (D-NY)
Stabenow (D-MI)

Ann Althouse said...

Thanks, Gerry. Yeah, I'd misread that.

Gerry said...

And I see you fixed at the same time. :-)

As for your hope, I see four in that list who will dash it in '08, and at least one more who will at some later date.

Ann Althouse said...

I think it's more likely that everyone on the list is running than that no one is.

Brando said...

I hope no one on that list is running for President.

Ann, have you been reading the news lately? The idea that how somebody voted for Roberts is going to make or break someone's election campaign is, quite simply, laughable.

This is a pathetic attempt on your part to score a point against "the crazy liberals."

Jack said...

Question:

When you write, "As to those 22 Democrats who voted no, they have openly embraced an ideological view of the Court from which they can never credibly step back," does this mean that in any Supreme Court nomination if a Senator opposes and votes against a qualified candidate, they are openly embracing an ideological view of the Court?

If the answer to that question is "no", would you please explain how that statement applies in this case but not in other (real or hypothetical) cases of Supreme Court nominees.

This appears to go against the grain of "advice and consent" (forgive me if it is "advise" instead of "advice", but my reading has always been "with the advice and consent of the Senate") and require unanimity else condemnation as "ideologically driven", which does not seem to me to be the spirit of a truly democratic process.

Gerry said...

"The idea that how somebody voted for Roberts is going to make or break someone's election campaign is, quite simply, laughable."

I think Senator Feingold is going to test your theory.

Jacques Cuze said...

Heroes today, one and all.

Matt said...

The two most credible POTUS contenders on the "nay" list seem to be Clinton and Bayh. Each have reasons for their vote.

Clinton--after Bloomberg came out in opposition to Roberts, she wasn't going to let herself get flanked for the Senate election.

Bayh--the amount of hate for Bayh among people on the left side of the party is MASSIVE and (IMHO) both inexplicable and unjustified. He's trying to burnish his credentials with them for the primaries.

Freeman Hunt said...

I now have more respect for the Democratic Senator from my state as that person is not in the list of 22

Simon said...

Bayh--the amount of hate for Bayh among people on the left side of the party is MASSIVE and (IMHO) both inexplicable and unjustified. He's trying to burnish his credentials with them for the primaries.

This is all true, but I think Bayh is actually a pretty good candidate for them. I would prefer, of course, that he didn't represent my state, but I would far rather have him - as Senator or President - than some others on that list. Now, if only he were pro-life...

EddieP said...

Man that list of Senators is scarey. With the exceptions already noted, it reads like the invitees to a Freddy Kruger Fright Night.

The only reason to seek advice and consent from that bunch is because it is required by law.

PatCA said...

That no vote is the vote of no return. Considering that Justice Ginsburg also refused to answer questions on her personal views of cases and still passed by a 96-3 vote will, I'm sure, be mentioned by every opponent of these Democrats.

Again, they are shooting themselves in the political foot.

Tsymyn said...

Having recently moved from Hawaii (after the 2004 elections) I'm not at all suprised to Inouye and Akaka on that list. If it's not about rasing longshoremen's pay and new regulations and taxes on business to fund free late-term abortions for illegal imigrants, they're not on board.

Scipio said...

My thoughts on the process can be found here:

http://vastright-wingconspiracy.blogspot.com/2005/09/john-danger-roberts-confirmed-as-chief.html

But seriously, I don't think this will affect anyone's chances as a presidential candidate. No matter who the Dems put up in 2008, if the candidate campaigns as poorly as Kerry did, the GOP could put almost anyone in the White House.

reader_iam said...

I have already written a note to Sen. Harkin (of Iowa, where I live) and am preparing to write one to Sen. Biden (I previously lived in Delaware for 24 years, still have a small biz that was and is incorporated there, and may end up back there someday). I suggest those of you in states represented by the 22 do the same. It may not matter, but then again, it's what you can do ...
(Nice to be back; I was having some technical problems. Some terrific posts and corresponding discussions in comments over the past few weeks!)

Matt Barr said...

I don't know how many are running for President, but now I have a good idea one of them is running for Vice President: the junior Senator from Illinois.

Ann Althouse said...

Jack: Roberts is more than "qualified." He's stunningly, brilliantly qualified. You can't vote against what he is without permanently branding yourself an ideologue who does not respect judicial independence. I'm disgusted with all 22 of those characters. They have abused their constitutional power, and I won't forget it when they run for President.

Jacques Cuze said...

Man that list of Senators is scarey. With the exceptions already noted, it reads like the invitees to a Freddy Kruger Fright Night.

You and I would be lucky to have this bunch by our side at Freddy Kruger Fright Night:

Frank Lautenberg: enlisted and served in the Army Signal Corps in Europe during World War II. Following the war, he attended Columbia University on the G.I. Bill and graduated with a degree in economics in 1949.

Harry Reid: ...During these years as a law student, Reid supported his young family by working nights as a U.S. Capitol police officer.

Daniel Inouye: World War II combat veteran who earned the nation's highest award for military valor, the Medal of Honor.

Tom Harkin: Following graduation from ISU, Tom joined the Navy where he served as a jet pilot on active duty from 1962 to 1967 and afterwards continued to fly in the Naval Reserves. He is an active member of American Legion Post 562 in Cumming.

Jon Corzine: The senator was graduated Phi Beta Kappa from the University of Illinois at Urbana-Champaign in 1969 and enlisted in the U.S. Marine Corps Reserves. He remained in the reserves until 1975, rising to the rank of sergeant in his infantry unit.

Daniel Akaka: World War II - U.S. Army Corps of Engineers (including service on Saipan and Tinian), 1945-47

Matt said...

I actually quite like Bayh, and had predicted in 1995 that he would be Gore's running mate in 2000. I suspect that had he been, the EV results would have been different--Bayh probably could have flipped Indiana and helped in the midwest, rendering FL superfluous.

Jacques Cuze said...

My apologies, I forgot Kerry, as you know he served two distinguised tours served in Vietnam. He received a Silver Star, Bronze Star with Combat V, and three awards of the Purple Heart for his service in combat.

Mark said...

Ann,
What do you mean by embracing "an ideological view of the Court"? Do you mean that these 22 Democrats believe that ideology should play some part in deciding whether to confirm a nominee? If that is so, then is it necessarily wrong? Imagine an appointee with a stellar professional record who is either very liberal or very conservative; he/she does not believe in precedents, has radical view of the law, etc. Should not Senators then be entitled to taking ideology in the consideration? After all, don't you think Presidents take ideology into account when they make their decision whom to nominate?

Now, I am not saying that Roberts is such an extreme nominee. I am just arguing that ideology may, under certain circumstances, be a valid factor to consider. Yes, it may mean "locking outcomes in place."
If these outcomes are well-established rights, then I would argue that, yes, we should be sure that a nominee would not attempt to eliminate these rights. Note that I am not talking about controversial rights, such as privacy rights, etc. I am simply arguing that there are certain so well established and recognized rights or theories of law that a nominee who does not believe in them may and should be defeated on the basis of his/her judicial beliefs. For instance, imagine someone who does not believe that 1st amendment protects non-political speech or someone who believes that segregation is constitutional.

Therefore, it comes down to each Senator to decide, whether in each particular case the threshold is met. It is, therefore, not fair to castigate these Senators as somehow ideologizing and politicizing the process of confirming nominees. In this case, they decided that Roberts is either too extreme or too unknown to merit a confirmation. So be it, that is their right.

Wade_Garrett said...

Though I think that there are some Senators on this list who are just doing what they believe their constituents would want them to do, there is a greater number in which I am very disappointed. Who did the Democrats want Bush to appoint, if not somebody like Roberts? He's not a Bork or Scalia. I think that Bush "did the right thing" when he selected Roberts to replace O'Connor, and did an even better thing when he nominated him to be Chief Justice. And from a purely tactical point of view, everybody knows that there are some fights you can't win, so why not save your energy for a potential future nominee with whom you might have some more serious problems?

Though this cartoon expresses a point of view somewhat different than mine, I still think its hilarious: http://www.washingtonpost.com/wp-srv/opinions/cartoonsandvideos/toles_main.html?name=Toles&date=09132005

Jack said...

Ann: Since Senator Edward Kennedy said he regretted his vote to confirm Associate Justice Scalia, another arguably "stunningly, brilliantly qualified" nominee/Associate Justice who has (again, arguably) proven rather erratic and apparently ideological in some of his opinions, and that hindsight was the foundation of Kennedy's vote against Roberts, and given that Kennedy will never again be realistically in the running for President, is there no room at all in your opinion for dissent without a broad-brush labelling of "ideologically driven" and apparently aiming for the Democratic Presidential nomination? (Please don't immediately respond that Senator Kennedy has reduced himself to a parody of an ideologically driven politician, I accept that appearance but am willing to give him the same benefit of the doubt I give to Tom DeLay not being guilty of breaking the law in spirit if not in fact).

Yes, I'm trying to nail down some specifics here, because I strongly believe that dissent is not only allowed, but vitally necessary, and statements such as that in your post branding all who voted against the current nominee as having "openly embraced an ideological view of the Court from which they can never credibly step back" seems to be a complete rejection of dissent.

Mark said...

I saw Jack's post and your reply after I had posted my comment.
Yes, Roberts is qualified. He's a brilliant lawyer, nobody is disputing it. The question is: is being a brilliant lawyer and being undoubtedly qualified enough to merit a "yes" vote?
I argue that it is not enough for neither the President nor the Senate. Was not Bork a brilliant lawyer and qualified to serve as a Justice? Yes. Was the Senate right in rejecting him for his extreme views? Undoubtedly so.

Roberts is not Bork (at least, I hope so). But there's nothing in his record which would oblige Senators to vote for him. If anything, he consistently made right-wing choices, both in his role in executive and in his decisions as a judge. It may or may not be enough to cause me personally to vote against him, but I would never blame anyone who decided that there's too much betting in voting for Roberts

Akiva said...

quxxo, it's not their personal history that's scary, it's their political history! Review how Lautenberg got back in to office. See that they're not interested in a fair court but rather a narrowly focused court, focused on their party's non-main-stream consituent groups.

Scary!

Mark said...

Akiva:
Lautenberg got into office by winning an election! The NJ Supreme Court ruled that Democrats could substitute Lautenberg for Torricelli, so I see nothing wrong with how he won an election and became a US Senator again.

Mark said...

I guess that "non-mainstream constituent groups" refer to 48% of people who voted for Kerry. Plus, according to most polls, public sides with Democrats on most issues, so how does it fit into "non-mainstream" language?

The Exalted said...

i'm sure the president didn't consider the ideology of his candidate at all, no siree

fact of the matter is, the white house, for no good reason, refused to provide reams of memos that roberts had written during his employ for the government, that would have provided crucial insight into his views on a variety of issues.

why did the white house refuse to provide these documents? because roberts was a stealth nominee, a man whose bench record was so short as to prevent any paper trail, and these documents were all that anyone could look at it to find his positions.

these senators believed that the refusal to hand over these documents severely impaired their constitutional duty to advise and consent, and voted against his confirmation.

and while ginsburg refused to answer some questions, she was much, much more forthcoming. compare their transcrips, if you like.

but please, return to your little tower where all opposition to roberts results from flag-burning, america-hating ideologues.

Simon said...

Ann,
I respectfully dissent. I may or may not be an ideologue, but I do feel that it is perfectly reasonable to ask what the judicial philosophy of a person going on to the Supreme Court might be. It seems perfectly appropriate to ask if a candidate views the court as some kind of superlegislature (or perhaps a "super-duper-legisalture") entitled to ensure that the nation's laws conform to the evolving standards of decency of Americans, or whether the candidate views the court as being a court, leaving questions of the widsom of laws - and the updating of the constitution - to the democratic process. I have to admit that I'm more-and-more pursuaded by what I think is Mark Tushnet's argument that the mistake isn't the way that the democrats are handling Roberts, it's the way that the GOP handled Ginsburg and Breyer.

Now, make no mistake, I don't agree with the views of the Democrats on the committee, and I think that the WAY they have presented themselves during this business is absurd - but I think the reason Scalia was a good pick for the court had nothing to do with how well-qualified he might have been, but because his judicial philosophy preserved the constitution and the democratic structure of this country.

I think there is a lesson to be learned from these hearings, and I have penned an ad hoc 28th amendment to implement it here.

Paul said...

I hoppe none of them get re-elected.

Art said...

Akiva said....
"See that they're not interested in a fair court but rather a narrowly focused court, focused on their party's non-main-stream consituent groups."

Like Republicans don't care what Focus on the Family thinks?

Seriously, the only thing that matters is results.

If John Roberts writes a majority decision in the upcoming Partial birth case that not only restricts that proceedure but has the effect of re-instating laws such as Wisconsin's criminalizing abortion (Note to law faculty waiting to flame me. I think this would be a stretch. But people would have said the same thing about Roe v. Wade doing what it did.) ....
Those Democratic senators who voted for Roberts will face tough sledding .

And as I've said, what's the penalty for voting against him?
Republicans don't "make nice". The Dems who did Bush a favor will be tagged as "dangerous extremists who hate your values".

Simon said...

fact of the matter is, the white house, for no good reason, refused to provide reams of memos that roberts had written during his employ for the government, that would have provided crucial insight into his views on a variety of issues.

Um, the documents you're referring to relate to Roberts' tenure in the SG's office. EVERY LIVING SG, dem and gop, signed a letter saying that those records shouldn't be released. Your argument is baseless dem propaganda.

tcd said...

Mark,

I'm not a lawyer and freely admit that I know very little about the laws, lawyers, and the US Supreme court.

Do you oppose extreme justices or do you just oppose extreme right-wing justices? And do you think that opposition to extreme justices goes both ways; i.e. do Republican senators have as much right to oppose extreme left-wing justices as Democrat senators have to oppose extreme right-wing justices? Nevermind, I already know your answer.

Mark said...

tcd:

Even though you "know" my answer, I will dare to post it. I think both Dem and Rep are free to consider ideology in voting for or against a nominee. There may undoubtedly be extreme liberal nominees, and Senators would be free to reject them.

Ideology is almost inherent in selecting a nominee. And it is also present in confirming as well. It is unfortunate, but true.
Perhaps, it would be better if both Presidents and Senate choose nominees on strictly non-ideological basis. But it's not the way its been.
I never quite understood the argument that President is entitled to his nominees because he was elected. Of course, he is. By the same token, Senators are entitled to vote the way they want because they were elected as well.

Mark Daniels said...

This is a different Mark commenting from the one above.

As to Ann's original point: No one seems to hold political figures of either party accountable for inconsistencies any more. So, I don't expect that the principles enunciated by those who voted against Roberts' nomination will be called to task should they adopt different ideas for the confirmation of justices nominated by Democratic presidents.

Equally interesting, but no more significant will be the reactions of Republican senators to Democratic judicial nominations of the future.

Of course, there's nothing wrong with political figures changing their views over time. Only dead people don't change. But pols should be asked to account for their changes. As I say though, that seldom happens.

Barry said...

I think that this vote will have very little effect on the next presidential election. The Supreme Court nomination process is barely on the radar in most election cycles. It does come up, but you'll hear much more about taxes, health care, and foreign policy in the 2008 race than nominations. It may be important to certain people (law professors, obviously, and others), but I rarely see it discussed outright in exit polls as a factor.

Plus, it's a valid point that toeing the party line in this issue is a good political maneuver, especially for the primary season. The beginnings of the presidential campaign have to appeal to the party base a good extent, since most states still rely on closed primaries/caucases.

Thirdly, I don't think a no-vote here is totally invalid. Some Senators may be feeling like they are upholding their role as voices for the people that elected them. I know that's a stretch, but it is a valid excuse, if they feel that their constituency would want them to vote no.

Of course, I also think there's some political manuevering going on here. I'm sure some of these Senators were assured that their no-vote would not be "the one" to bring Roberts down. The party strategists are surely smart enough to see that Roberts couldn't be blocked, from a strategic standpoint. As long as enough Democrats voted yes, some could make stands against the other side - a safe way to create champions for the cause.

Gerry said...

"The Supreme Court nomination process is barely on the radar in most election cycles"

I suggest that the very distinct red state/blue state divide evident in the split down the Democratic caucus is evidence that the Democrats in the Senate, in aggregate, do not agree with your assessment.

Ann Althouse said...

Simon: Roberts did reveal his judicial philosophy. His opponents demanded that he reveal how he would decide particular cases. He can't do that, and judges in the past, like Ginsburg haven't done that. It would be WRONG to do that. What more can be said?

Al Maviva said...

Quxxo - big deal.

Lee Harvey Oswald. Charles Whitman. Marines.

William Calley. Army.

SteveR said...

I suspect that the 78-22 for Roberts vs a 96-3 (RBG) et al is just setting the tone for the next nominee who will be under any circumstance the most dangerous, backsliding, stealer of liberties and rights ever to come before the Senate and therefore we can invoke "extreme circumstances." "I mean we were reasonable about Roberts but (fill in the blank) is a whole other story."

Hey my word verification is Akaka!

Simon said...

Ann,
Okay, arguendo, let's say that what he said in his confirmation hearings did explain a coherent judicial philosophy. That being the case, suppose I were a member of the U.S. Senate. Could I really not vote against a person with his judicial philosophy "without permanently branding [my]self an ideologue who does not respect judicial independence"? Is it really an "abus[e] [of my] constitutional power" to say "this guy has an encyclopaedic knowledge of the law, and if I needed an attorney to argue my case, I'd retain him in a second, but I think that the role of the court is specific and defined, and I believe that the judicial philosophy he believes in is root-and-branch incompatible with the function of the Supreme Court which I believe the constitution demands?"

I would have voted against RBG, qualified or not, because her views on what courts should do, I think, is antithetical to the role of courts in our system of government. Is that really not sufficient basis to vote against her?

Steven said...

Fully half of the Democratic delegation to the Senate voted against the superbly-qualified nominee of a Republican president not because he would shift the court to the right, but because he wouldn't shift it to the left.

The response should be quite simple. Bush should nominate somebody right of Scalia, and the Republican majority should nuke any fillibuster. Furthermore, to drive the lesson home, the Republicans should add two seats to the Court and put in two more right-of-Scalias, breaking any fillibusters along the way.

After all, if bipartisan collegiality and the traditions of the Senate are to be subverted to ideological opposition to the maintenence of the status quo, then there is no reason for the Republicans not to go forward with an ideological crusade.

whit said...

All the money including Charles Krauthammer's seems to be on Roberts not shifting the court to the right. I disagree and will bet on him doing his part on a more conservative court. With his professed judicial philosophy that a justice should "interpret law and not write it" how could he not disappoint liberals.

Pastor_Jeff said...

The saner commenters who are opposed to Roberts argue that the Democrats should reject far-right justices (just as Republicans would reject the far left). Are you saying you believe this about Roberts? What did you see or hear that makes you think he's a dangerous idealogue, and unfit for the SC?

Eddie said...

Unfortunately, they are all running for President, which is why their vote is influenced.

Bruce Hayden said...

I see two problems with those voting against him, and in particular, if they want to run for higher office.

First, they have just admitted by their vote that they would not vote for pretty much any potentially conservative nominee, regardless of qualifications. This also, BTW, puts them in the more liberal 1/2 of the Senate. Thus, expect to hear if they should run for president/vp "s/he is so liberal that s/he wouldn't even vote for Chief Justice Roberts".

As a corrolary, they have given up all bargaining points with the administration and the Republicans as to future nominations. Everyone knows how they will vote, so why even talk to them.

Secondly, should one of these people win the presidency, expect massive payback. "Why should we vote to affirm the president's pick for (X) when s/he wouldn't vote for such a well qualified nominee as Chief Justice Roberts?"

Simon said...

My confirmation message says "mropus" - Mr. Opus! It's trying to tell me something! "Hey, Brian, look, there's a message in my Alphabites! It says 'ooooooo'"; "Peter, those are Cheerios."

Ahem!

The saner commenters who are opposed to Roberts argue that the Democrats should reject far-right justices (just as Republicans would reject the far left). Are you saying you believe this about Roberts?

I realize that this likely isn't directed at me, but just in case it was: I previously explained my concerns here, here, and here. My concern is not that Roberts is not sufficiently right-wing; my concern is that he is not an originalist, which makes him, by definition, "just a different flavor of dead wrong", as Brian Keegan put it. A broken watch is right twice a day, and conservative Judges do often reach the right result, but I'd rather a result reached by the right process that I don't like than a result I do like by the wrong one.

Simon said...

Bush should nominate somebody right of Scalia, and the Republican majority should nuke any fillibuster.

I can't agree; I think the nuclear option is unconstitutional. See Judicial filibusters - my take, but cf. In defense of the Judges and Not a victory for Democrats. Change the rules or don't change them, I'm not saying I think that the filibuster is necessarily a good thing that must be retained, what I'm saying is that the nuclear option in an unconstitutional way of trying to get rid of it.

Rafique Tucker said...

Ann said: "Roberts is more than 'qualified.' He's stunningly, brilliantly qualified. You can't vote against what he is without permanently branding yourself an ideologue who does not respect judicial independence. I'm disgusted with all 22 of those characters. They have abused their constitutional power, and I won't forget it when they run for President."

Hold on a sec. They abused their Constitutional power by voting "no?" Since when did the Constitution require Senators to vote yes on all a President's nominees? It's fair to argue that the 22 Dems made a bad choice in voting against Roberts, but the idea that Bush's nominees nust be confirmed unaminously is absurd beyond measure.

Ann Althouse said...

Rafique: I didn't say the all the President's nominees have to be rubber stamped. I'm objecting to the infringement on the role of the judiciary that takes place when the Senate attempts to commit the nominee to particular outcomes. The President happened to pick someone whose qualifications as a judge were so plain that the only basis for rejecting him was the demand that he decide cases the way the Senators want and promise in advance to do so. That is an abuse of the power vis a vis the judiciary.

Simon said...

Ann,
The President happened to pick someone whose qualifications as a judge were so plain that the only basis for rejecting him was the demand that he decide cases the way the Senators want and promise in advance to do so. (Emphasis added)

In your view. I agree 100% with you that a) "the demand that he decide cases the way the Senators want and promise in advance to do so" is a fundamentally illegitimate criterion on which to reject a judge, and b) that is precisely the criterion on which Democrats voted. However, for reasons noted supra, I do not agree that this is the only basis from which to oppose Roberts' confirmation.

XWL said...

Anyone think that Prof. Althouse's comment that she hopes none on that list run might be her way of reminding the Democrats that no Senator or former Senator has been elected President since 1964 (when they both were ex-Senators, after that 68-Humphrey, 72-McGovern, 84-Mondale, 96-Dole, 00-Gore, 04-Kerry, see a pattern?).

If the Democrats want to win in 08 they will avoid nominating anyone from this list (or from the 23 who voted for Roberts for that matter). Being in the Senate inculcates too many bad habits that are lethal when these politicians are exposed to nationwide scrutiny.

(I wouldn't give the Democratic party sound advice unless I was absolutely positive that it would go entirely unheeded)

Now back to this particular vote, a vote against Chief Justice Roberts is a vote for partisan demagoguery.

The role of the Senate had been (before the Dixiecrats subverted the process, is that the example that the current Democrats really want to follow?) to look at qualifications and some background of candidates, and if nothing was obviously amiss, a vote affirming the appointment was a given regardless of politics.

What's so wrong with that?

Rafique Tucker said...

As far as ideology goes, I think its false to assume that it is only in play with regards to the Dems. This nomination was an attempt to achieve a certain ideological result. The fact is, ideology plays a role in determining one's judicial temparement or philosophy. It probably shouldn't, but it does.

I personally think it was a mistake to vote against Roberts, on principle and politically. There's nothing in his record that would reveal him to be an extremist.

Roberts was quite successful at avoiding questions about his philosophy. Maybe that's the excuse the 22 Dems will use to justify the no vote. It's not entirely baseless.

Eli Blake said...

First, you miss the obvious, in that except for Bayh, Harkin and Reid, all of them are from states that voted for John Kerry-- so they are reflecting the wishes of their constituents, who voted against George Bust for President.

That aside, if you are serious that they should never be taken seriously again, then what about Orrin Hatch and Mitch McConnell, who bottled up Clinton's judicial appointments in the 1990's (at least the Democrats let Roberts get a floor vote).

Eli Blake said...

Oops.

George BusH. (a Freudian slip on my part, at the keyboard).

And Mark at 2:19 hit it right on the head. It absolutely IS about ideology. AS IT SHOULD BE. Yes, I know as a Democrat, we don't have the guns to win right now, but I am sick and tired of watching Democrats throw up the white flag and give the Republicans 100% of what they ask for.

Just because you are going to lose doesn't mean some things aren't worth fighting for.

Chris said...

Bollocks, Blake. A lot of this is about comity in staffing the judiciary. During the Clinton term, Breyer and Ginsberg were approved with yea votes in the mid-nineties. Now Ginsberg was an absolute lefty nut from the ACLU who had it in for the Boy Scouts, but Hatch still gave her a pass.

What you can't get past is that the Runt Party (Jonah Goldberg's excellent phrase for what the Democratic Party has become...) is now a creature of its extremist base. Republicans could afford to vote for Ginsberg and Breyer as they were on their way to becoming a governing majority party. Democrats are on their way to minority status, falling back as they are on their base voters' habits such as blind opposition to conservative judges such as Roberts and, of course, the Minute of Hate with regards to Bush.

Somewhere along the line, you folks will start with the torchlight parades.

Jacques Cuze said...

Hatch gave her a pass? Are you kidding me?

Hatch recommended her.

As Harry Reid pointed out, he would be happy if The Chimp let the Dems recommend his nominees.

Why do you thuglicans hate America?

Beldar said...

The Tushnet approach, were it generalized, would immediately trigger the "nuclear option." Thereafter, the Senate's entire advice and consent function would become meaningless. In years in which the President's party also has a Senate majority, confirmation would become a rubber-stamp (absent LBJ/Fortas-scale division within the President's own party). In years in which the opposition controls the Senate, no nominee would be confirmed, and every replacement on the Court would be a repeated recess appointee until one party or the other again held both the White House and the Senate majority. Depending on which way the reallignment swings, though, the recess appointees would then either be permanently confirmed or leave the Court.

So in summary, the consequence of the Tushnet approach would be to make the Senate's role meaningless and to partially abolish life tenure for federal judges.

Ann Althouse said...

Chris: You write "Ginsberg was an absolute lefty nut from the ACLU," but that is totally revisionist. It's much worse than the way Dems are painting O'Connor as a big moderate now. Ginsburg -- let's spell her name right -- was called conservative by liberals when she was on the D.C. Circuit. Picking her wasn't a way to please liberals but to get a consensus candidate, which was typical Clinton style. Even if you remove the words "absolute" and "nut" from your description, you would still be wrong.

And a more competent understanding of the ACLU is needed. It is a traditional organization with an important role in the process. Her work on it was not a fringe activity in any way but the most respectable, prestigious postion a lawyer could hope for.

The work Ginsburg did for women's rights was basic and thoroughly desirable, nailing down the kind of things that we take for grated today.

Gerry said...

"Ginsburg -- let's spell her name right -- was called conservative by liberals when she was on the D.C. Circuit."

While true, it ignores the fact that it was a false characterization by liberals of her. Maybe they did so because that's how far out there the liberals who made that characterization are or were, or maybe they did so because they have a vested interest in redefining liberal judges as being in the center. Either way, I do not think it was credible to portray her as a conservative, and as such the fact that they did should not be taken at face value.

Ann Althouse said...

Gerry: Clearly, there were some liberal's liberals that Clinton could have picked. He didn't do it. That needs to be admitted as Ginsburg's name is used to argue in favor of Bush picking one of the conservative's conservatives.

Gerry said...

"Clearly, there were some liberal's liberals that Clinton could have picked. That needs to be admitted as Ginsburg's name is used to argue in favor of Bush picking one of the conservative's conservatives."

I can come close to accepting this. Factually, you are correct. However, there are still arguments to be made for using Ginsburg's name in favor of Bush picking one of the conservative's conservatives.

One argument that comes to mind is that there are slightly over 50% more self-described conservatives in the United States than self-described liberals, and as such a "liberal's liberal" is likely to be further from the 'mainstream' (if it is taken to mean the center of the country) than a "conservative's conservative." And Clinton was very mindful of where the country's center was.

Another argument is that the Democrats are threatening to filibuster anyone who changes the balance of the court markedly from where it would be if Justice O'Connor was staying. There is not much question that the Republicans recommended, with Ginsburg, someone who markedly shifted the balance of the court leftward. With this in mind, the question over if she was center-left, left, or left-left is really superfluous. Clinton could have nominated someone who would have moved the court more markedly to the left, but he definitely did nominate someone who moved it substantially to the left.

I think that Bush is entitled to make his selection, and if he nominates a strong conservative it should not be a disqualifier. A strong conservative can be within the mainstream of American jurisprudence, as Justices Scalia and Thomas both show.

In any case, I am hopeful that the President will put forward another candidate of high merit, the way he did with Justice Roberts.

Alpha Liberal said...

Ann, I really think it is unfair to project ONE reason onto 22 individuals. Surely, you can appreciate that there are many reasons to take any position on an issue. It's a tad bit demagoguic to take this approach.

PatCA said...

"There are slightly over 50% more self-described conservatives in the United States than self-described liberals."

That surprises me! Do you have a source for that?

Murky Thoughts said...

Believing myself reasonable and giving you the benefit of the doubt, Ann, I'm going to assert that reasonable people can disagree about whether Roberts truly answered all that he could, as you claim. Clearly that was his own line, and clearly many people including you found that stance utterly persuasive. I did not. What's utterly persuasive is that as a judge and as a pending Supreme he's entitled and authorized to interpret the Constitution, and as he says obliged to conform to what he believes the Constitution commands of him. But I do not agree with every interpretation he claimed to be conforming to, and I also do not agree that in every instance in which he refused to answer a question one or more of his interpretations, even if valid, properly applied. With only mild reservation, therefore, I would feel obliged to vote against him, were I senator, because I believe him to have been unconstitutionally in contempt of Congress and the people, and that approving him would irrevocably enshrine a terrible terrible precedent. I'm not prepared to call you "contemptible" or whatever you confidently called the 22 no votes, but I do find you unreflective and too ready to assume bad faith.

Gerry said...

PatCA, sure. Many, but here are one or two. This is the results from the CBS/NYTimes survey, and it goes back a few years to boot. Here is Harris going back to 1980. I do not have the links handy, but Gallup, Pew and Rasmussen have all found similar, differing by a point or two or three. By self identification, about 17-21% of Americans are liberal, and between 33-39% are conservative.

PatCA said...

Thanks, Gerry. The NYT poll is interesting. Most people identify as Dems but the moderate/conservative breakdown dwarfs the liberals.

I find this happy news.

Tom said...
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