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Advice And Consent: Part XXX

By Big Tent Democrat, Section Supreme Court
Posted on Wed Jul 15, 2009 at 03:59:33 PM EST
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Ilya Somin, who is scheduled to testify against the confirmation of Judge Sonia Sotomayor to the Supreme Court, restates a position he and I have held consistently about Senatorial deference to a President's judicial nominees:

The bottom line is that Supreme Court justices wield great influence and serve for life. It is dangerous to give any one man unconstrained power to choose them. It is almost equally dangerous to give him unconstrained power to appoint anyone with appropriate professional qualifications, since the president can almost always find a technically qualified nominee who will reflect his views - even if those views may be seriously flawed or show excessive deference to the executive. The current confirmation process has many flaws. But one that gives the President largely unconstrained authority to pick justices would be worse.

I've presented this exact argument many many times. Now, where are the Nuclear Option proponents (when Bush was President) to rebut this argument today? Listen to the crickets.

Speaking for me only

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    Advice And Consent: Part XXX | 24 comments (24 topical)

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    Let's face it (5.00 / 3) (#3)
    by Steve M on Wed Jul 15, 2009 at 04:13:10 PM EST
    Few, if any Senators, vote for a nominee because of "deference."  When they say "I have objections, but I defer to the President's choice," what they mean is that they're behaving like a typical politician and trying to have it both ways.  It's an effort to appear reasonable.

    There's no standard set forth in the Constitution.  It's all political.  If politicians felt it would help them to vote against every nominee, they most likely would.  Instead, most of them make the judgment that it's better to appear reasonable and non-obstructionist, so they take a different path.  But that hardly means they have some deep-seated institutional belief in "deference."

    Perhaps a better way (2.00 / 1) (#9)
    by jimakaPPJ on Wed Jul 15, 2009 at 05:15:35 PM EST
    would be to limit the terms to say, 18 years on a staggered basis of one per two years, starting with the most senior in service. That would insure fresh blood, so to speak, into the judiciary.

    The problem is that changing one Justice changes the balance of power. This, of course, is the result of letting the judiciary system become completely involved in making law which any reasonable person will have to agree has happened on both sides.

    Perhaps Roe V Wade and gay marriage, etc.,  should be settled by a constitutional amendment rather than the SC. If nothing else it would eliminate the claim that the laws are being made by the court, which both sides do regularly and a fair degree of truthfulness.

    Even more responsive is propositions. Do on the federal level do and have them included on the ballot. Perhaps a super majority requirement to weed out the more spurious.

    Re your last paragraph, have you (5.00 / 2) (#10)
    by oculus on Wed Jul 15, 2009 at 05:22:25 PM EST
    veen following events in California?

    Parent
    Well, raw democracy is always (2.00 / 0) (#13)
    by jimakaPPJ on Wed Jul 15, 2009 at 07:18:50 PM EST
    dangerous. I think the Greeks and the Romans found that out. Besides, I think Prop 8 passed but less than 60%. But I see your point.

    Parent
    Limiting terms (5.00 / 3) (#11)
    by Carolyn in Baltimore on Wed Jul 15, 2009 at 05:48:18 PM EST
    means churning the bench - and a President would likely pick 4 during his/her terms  - and more if there is illness or death. That is scarier than waiting out the Bush years for Souter (and Ginsburg and Breyer who are also old and/or ill).
    O'Connor waited out Clinton on the other side....

    I'm not sure we should go through this very often. I also think that this being the career-ender keeps justices more honest than if they would be looking for jobs after SC terms.

    Parent

    But (none / 0) (#22)
    by jbindc on Thu Jul 16, 2009 at 08:10:28 AM EST
    I'm not sure how that would work, as there are roughly 3500 federal judges that are/were appointed, including the 866 authorized Article III judgeships (appointed for life).

    Parent
    I agree entirely (none / 0) (#1)
    by andgarden on Wed Jul 15, 2009 at 04:06:18 PM EST
    But here's my question: what happens when you have split control, as in the 90s?

    On many of these issues, there can really be no compromise.

    Nuclear option (none / 0) (#2)
    by Carolyn in Baltimore on Wed Jul 15, 2009 at 04:12:46 PM EST
    proponents are quiet, having figured out they don't have enough votes to filibuster and will surely lose on an upperdown vote.
    I thought the whole thing was ridiculous. The filibuster is a great thing to keep really extreme laws and nominees from gaining power. Frankly it should have been used against Roberts and Alito. I am concerned that too many Senators will just defer to the President. We got Ginsburg and Breyer because Hatch told Clinton they'd get through. Very few nominees have been scuttled. Except of course most of Clintons Federal bench nominees.

    Elections matter (none / 0) (#4)
    by Slado on Wed Jul 15, 2009 at 04:38:42 PM EST
    All this partisan theatre is exactly that.   Theatre.   The political leanings of the public should and do determine how hard the opposition or majority party resists the president's choice.  

    If the populace had been opposed to Alito or Roberts then Dems should have used the nuclear option.  As it was they weren't and dems made a bunch of noise in a lame attempt to satisfy the BTD's of the world but the majority of Senators voted to confirm and it was much to do about nothing.

    Politically they didn't have the muscle and politcally Republicans don't have it now.

    Elections matter and Obama gets to pick who he wants to serve.  She is a qualified liberal judge (imagine that) who by the way doesn't change the balance of the court and repulicans are only being as partisan as they are to satisfy their base (a small portion of it) and they will pass her through.  

    While BTD is right in theory you're wrong on reality.   Supreme court picks require much political capital to oppose and rarely is the risk to the opposing party worth the political capital if the general public is not behind them.

    The general population pays little to no notice to these hearings and doesn't want their Senators wasting time on partisan politics when there are real concerns right now, like the economy, jobs, war, healthcare etc...

    Last I looked (none / 0) (#6)
    by Big Tent Democrat on Wed Jul 15, 2009 at 04:42:01 PM EST
    Senators are elected.

    Parent
    not in andgarden's monarchy (none / 0) (#8)
    by oculus on Wed Jul 15, 2009 at 05:01:45 PM EST


    Parent
    When I abolish the Senate (none / 0) (#16)
    by andgarden on Wed Jul 15, 2009 at 08:26:32 PM EST
    the A&C responsibilities shift to the House.

    Parent
    Oh man, how long would those hrgs. (none / 0) (#18)
    by oculus on Wed Jul 15, 2009 at 11:38:54 PM EST
    take?

    Parent
    Triple X (none / 0) (#5)
    by squeaky on Wed Jul 15, 2009 at 04:39:26 PM EST
    Sounds dirty... especially the consent part.. lol

    Pick of a Justice was something I thought about (none / 0) (#7)
    by joze46 on Wed Jul 15, 2009 at 04:56:12 PM EST
    Watching the new Senator Al Franken ask questions to the Supreme Court nominee Ms. Sotomayor was very interesting. The question in reference to the open freedom Americans should have on the Internet jumped out at me. The electromagnetic spectrum is space that is public domain just as all common wealth actions are. Just like public land preserves, water works, electricity, sewer, roadway, Highway, railroad, air line, especially waterways. Anyway there is the law for that stuff.  

    Actually public domain principles have run amuck through the ages with the dominant problem in the air we breathe, or basic economic system we work in. At this point in my life, I never thought I would hear the expression what is called Predator lenders or Zombie banks and our Federal Reserve secretly gave money away through the decades with no return in mind. Just lately handed over almost a trillion tax dollar and don't know how to account for it. For me it was a real mind blower to find out you can not audit the Federal Reserve. Talk about fixed corruption.  

    Anyway the pick of a Justice was something I thought about too. Actually, ever since the 2000 election in Florida where the Supreme Court stopped vote counting and essentially gave George Bush the win in the election exposed the bias and unfair situation that can exist in the finally supreme law of the land. For me, an out rage that is still there that extends to Americas basic economic system of which the Supreme Court has ignored because of political family ties is sad with a growing anger that is more obvious everyday. The basic law of the Federal Reserve is designed for the rich and connected, it needs to be changed. This whole system is absurd to keep bailing out huge companies. Its stupid.  

    We are saturated in corruption, economic, political, and legal, which is difficult to perceive but is brought to you by our very Mainstream Media so oh connected that change will be just as painful to this medium as others.  America is so distressed because of the media culture and its connection to the politics and power. As Bush says we are resilient but what he and the GOP did not realize is to establish that simple turn of events, to make thing better there is no recourse where they, the bush administration crossed the line with starting a war with administered torture,  they must be addressed, observed, investigated, with any criminal actions brought to convictions.  


    Please (none / 0) (#21)
    by MrConservative on Thu Jul 16, 2009 at 04:51:31 AM EST
    Explain to me where the fed "gave away" money over the years?

    Parent
    Here's my plan for fairness. (none / 0) (#12)
    by Saul on Wed Jul 15, 2009 at 06:51:29 PM EST
    The pick of a SC justice would have to be alternating by party affiliation.  If a republican president is in office and the last SC that was picked by a  president was a republican then during a SC vacancy  the current republican president would have to pick a SC that was a democrat and vice versa  and so on.  

    This way no president could stack the court during his administration  with SC justices that belong to  his party if there was a slew of vacancies during his tenure.

    Dreaming of course

    Indeed (none / 0) (#14)
    by jimakaPPJ on Wed Jul 15, 2009 at 07:25:43 PM EST
    Sweet Dreams Are Made of This.

    Well, it would insure we get less of a Demo and less of a Repub.

    Parent

    To introduce party politics (none / 0) (#20)
    by MrConservative on Thu Jul 16, 2009 at 04:49:53 AM EST
    Directly into the constitution would be a huge step.

    And if a Republican picked a Democrat, it would be a "Democrat", not a Democrat.

    Parent

    Party politics is directly introduced (none / 0) (#23)
    by Saul on Thu Jul 16, 2009 at 09:34:53 AM EST
    in the Constitution as we speak when we are trying to replace a SC justice. The presidents always pick one from his party for consideration of a SC justice

    Parent
    The true stealth nominee (none / 0) (#15)
    by diogenes on Wed Jul 15, 2009 at 08:15:10 PM EST
    On what basis do you give advice and consent when the nominee will not give a basic position even on abortion?

    I would agree if I thought (none / 0) (#17)
    by oldpro on Wed Jul 15, 2009 at 09:20:19 PM EST
    there were some way to force an honest answer to a substantive question.

    But how?

    Refusing to support a nominee is the only power each senator has.  If your party's president picks a nominee you refuse to support, won't that go megapolitical on all fronts?

    I can't imagine how it would actually work...

    I support the nuclear option (none / 0) (#19)
    by MrConservative on Thu Jul 16, 2009 at 04:48:34 AM EST
    But I don't think senators have any responsibility to defer to the president.  The very thought is absurd.

    stealth nominee II (none / 0) (#24)
    by diogenes on Thu Jul 16, 2009 at 02:02:01 PM EST
    Exactly which precedent did Sotomayor rely on in the Ricci case?  How can we rely on her record when she cannot even explain how she comes to basic conclusions?

    Advice And Consent: Part XXX | 24 comments (24 topical)

    Readers Must Login or Create an Account to Comment