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‹ FEATURED DISCUSSION

July 21, 2005

Nominations and the body politic

By Richard Epstein

Earlier this morning I published a column in The Wall Street Journal that said, in essence, that criticism of philosophical positions is a two-way street. More concretely, it challenged the practice whereby senators criticial of a nomineee could make statements as if from high, so that the soundness of a candidate's views, in this case John Roberts, is measured by the degree to which they deviate from that appointed position. My specific target on this occasion was Senator Charles Schumer, for the remarks he made after President Bush had announced the Roberts nomination. But the overall point goes to both sides of the political debate, and thus covers charges that might come from the right against a future Democratic nominee to the court.

I think that it is useful to stress this point for one simple reason. Those people like myself and Steve Presser who harbor limited-government libertarian views have much to be critical of the views of both parties. Indeed, the recent decision of Gonzalez v. Raich shows vividly how a Republican administration can push its Commerce Clause arguments to the limits. But at this point, Roberts is the target, and the sensible response is to separate disputes over intellectual positions from disputes over the choice of nominee. Roberts has a sterling record, and this morning's column by David Brooks points to his many well-known and admirable personal traits. Arguments about substantive positions should be made in briefs, and not in arguments over nomination.

Everyone has to remember that a nominee is a bundle of positions on all sorts of issues. It is as if we were given the choice to take or leave a bag of groceries in a supermarket, some of whose contents we liked and some not. In general, we are better taking the bag if there is an all-or-nothing choice even if we do not like all of the items. In politics it is still worse because there is no candidate who is worth his or her salt who does not have some features various groups do not like. All that we can ask for is to have a person who will listen to the arguments when individual cases are decided, issue by issue.

I do not think that the hard-left will be able to stop Roberts by itself, although it would love to try. Unless and until there is some new revelation (which there won't be) the sensible strategy for most liberal democrats is to follow Jeff Rosen's lead in his New York Times article, and be gracious about the whole matter. Let us hope that this position prevails. The fewer postings between now and confirmation, the healthier the body politic.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.