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Pernicious politics and the rule of law

July 28, 2005 3:16 PM

Amen, Richard. Let me be just a bit more blunt than you were. Not only is there a problem with asking nominees how they will rule in specific areas (affirmative action, death penalty, abortion, ten commandments and the rest), but the very presumption that the Senate�s job is to make confirmation turn on expected results in particular cases is a wicked perversion of what I think the Senate is supposed to do. The Federalist tells us that the Senate is supposed to police against corruption on the part of the President in making nominations � to be alert to attempts to put unqualified friends, relatives, and assorted cronies on the bench. Hence the job of the Senate is to examine the qualifications and character of the nominees, and not try to figure out how they will rule.

We should be very clear about what Senators Leahy, Schumer, and Kennedy are up to--they have no interest in the rule of law as you and I understand it. They are, as Senator Cornyn has been pointing out lately, engaging in blatant acts of hypocrisy in order to assure their base that they will protect Roe v. Wade, affirmative action, removing religion from the public square, and other liberal goals; and that they will do their damnedest (the appropriate word) to keep off the bench anyone they suspect might render decisions not to their liking. What they are doing is not only hypocritical (several of them apparently had no problem with Ruth Ginsburg�s refusal to take substantive stands at her confirmation), but, as you point out, exceptionally pernicious.

The latest tactics � demanding pledges that Roberts believes that Roe v. Wade is the settled law of the land, and the fishing expedition for memos when Roberts served in the first Bush administration � appear to be designed to furnish excuses to vote against confirming Roberts, and would work marvelously against any nominee, especially one with service in the Executive Branch. And that is what I think is really going on here; beginning perhaps with the original �Borking,� accelerating with Senator Schumer�s extraordinary hearings a few years back on �judicial ideology,� and culminating in these latest efforts by Democrats on the Senate Judiciary Committee, we are witnessing, as I�ve said, the complete politicization of nominations to the bench.

Where we are approaching, I believe, is the point where anyone�s record can be distorted in the service of satisfying Senators� political constituencies, and any nomination is at risk from blatant lies and distortion. After all, none of us (maybe you excepted, Richard) is free from foibles, errors, occasional thoughtless comments, and a certain amount of irrationality in matters of religion, youthful indiscretion, romantic relationships, or occasional emotional outbursts. These are problems that come with the human condition. We�ve all, in short, made mistakes, and if these peccadilloes can be blown out of all proportion, and used to defeat a candidate with such obvious sterling credentials as Roberts has, sooner or later sensible people will decline nominations. I still think Roberts will be confirmed, but the last few days are not encouraging to those of us who still want to preserve the difference between law and politics.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.