No You Can’t, And No You Won’t
No You Can’t, And No You Won’t
Conservatives are asking: “Can we please do it like Ginsburg?” John Cornyn says as much in today’s Washington Post. The argument is pretty simple: During the Clinton years, the Republican Senate minority deferred to a Democratic President’s selections for the Supreme Court. Now George Bush deserves the same deference.
This won’t wash, for two reasons.
First, the O’Connor vacancy matters much more than the vacancies that Bill Clinton filled. Yes, Clinton’s first nominee, Justice Ruth Bader Ginsburg (for whom I clerked), replaced a more conservative Justice, Byron White. But White was not the decisive vote in the way that O’Connor is today. This is Linda Greenhouse’s evaluation the day after White retired:
Replacing Justice White with a more liberal Justice would not necessarily change the Court drastically. It would be more likely to add a liberal vote to the centrist majority that has prevailed in several recent high-profile cases, including the Court’s rulings in June that reaffirmed the constitutional right to abortion and barred organized prayer at public school commencements.
Clinton next replaced Harry Blackmun, who by his retirement was the Court’s “most liberal member” (Greenhouse again). Clinton’s choice, Stephen Breyer, was in some ways more conservative than Blackmun in his final days–on capital punishment, for example. In short, deference in 1993 and 1994 came cheap. There is no reason to expect the same with a nomination so momentous.
The second point is that Bill Clinton reached out to Republicans in ways that George Bush likely won’t reach out to Democrats. It’s not just, as this site has already pointed out, that Clinton actually listened to Orrin Hatch’s advice, while nobody expects Bush to give Pat Leahy the time of day. It’s also that Clinton chose Justices who weren’t traditional liberals in the Brennan-Marshall mold. Breyer and Ginsburg don’t find welfare rights in the Constitution. They don’t proffer bold new procedural protections for criminal defendants. They’ve applied the death penalty, though they’ve tried to do it fairly. They are, to use Cass Sunstein’s category, “judicial minimalists,” which nobody ever called Justice Brennan. Democrats’ acceptance of that minimalism represents a shift from traditional liberal jurisprudence that roughly parallels the “New Democratic” reform of traditional liberal politics.
Does anybody expect George Bush’s next nominee to stand for a centrist reform of conservatism? As lawyers like to say, asked and answered.
– Robert Gordon
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I’m not too sure, but I think Democrats can filibuster if they don’t like the nominee.
Anyways, if they do filibuster, no doubt the right is going to come out denouncing the act as trying to impede a fair and judicious appointment.
The most important thing for Dems to remember is not to blink first and let the administration sneak in some ultra-conservative painted as a nice duplicate of O’Connor.
July 2nd, 2005 at 4:06 pmI agree no blinking, if you keep your eyes open while the on coming train blows right through you, perhaps you will in future decide on a more intelligent course of action. Although I doubt it, like lemmings over a cliff.
July 2nd, 2005 at 4:46 pmAs I said on the other thread, Clinton was still able to get through not one, but two Justices who were liberal on all the most important issues: Abortion, affirmative action, homosexuality, etc. So by all means, let Leahy reciprocate. Let him put forward two pro-life originalist (but not extreme anti-New-Dealer) nominees who would pass with flying colors. Actually, that describes just about every one of Bush’s possible choices except for Janice Rogers Brown.
July 2nd, 2005 at 4:59 pm“No You Can’t, And No You Won’t ”
That’s some mighty big talk for a party with so little power. This is a great weekend for me, and to put it in perspective for you guys, you are now in the position of missing the deciding vote in the Gore decision, think about that this weekend as you are burning your flags and praying to mecca or SCOTUS, or whatever it is you do.
July 2nd, 2005 at 5:15 pmI’ll just ignore that slight of people of the Muslim faith that “fake but accurate” thoughtlessly posted.
I am a bit dissapointed that we are not at a stage where we can push a liberal judge, however we can very well ensure a moderate nomination if we stay committed.
I am buckled down for the roller coaster ride partisan battle about to be unleashed.
July 2nd, 2005 at 7:27 pmYou’re only deluding yourself Kevin.
July 2nd, 2005 at 9:41 pmScrew compromise. Rove is going to prison, DSM, the war in Iraq is being bungled. Stick it to them, bring them down, stomp on them like bugs and grind them into the dirt.
July 3rd, 2005 at 5:17 amThe majority of this country do not support Bushco so I wouldn’t worry about their list of crimes anymore.
We the People will see to it that all repuglycan criminals are in jail where they belong.
So many people are taking action, it’s only a matter of time before we can put this ugly repuglycan nightmare to rest.
We the People have spoken and in this great country, We the People rule!
votetoimpeach.org
July 3rd, 2005 at 11:03 amYou really shouldn’t have drunk the Kool-Aid Susan.
July 3rd, 2005 at 4:46 pm“majority of this country do not support Bushco”suzy
Yes, that’s right, we all know kerry won. That’s why he is referred to as senator kerry now. right?
“I’ll just ignore that slight of people of the Muslim faith that “fake but accurateâ€? thoughtlessly posted.”kevin
So at least you acknowledge the muslims you defend would be offended if they were confused with dhimmicrats. You should hear them whining on the islam online message boards, they see you as weak allies who are about out of usefulness. They think less of you than conservatives do, and that is saying alot.
“accurate but fake  July 3, 2005″
July 3rd, 2005 at 5:54 pmyou like that handle don’t you, but you would think your sides failed bid to derail the democratic process would embarress you, but that would take honor, we know you have none. But there can be only one, the original, your Daddy:
“So at least you acknowledge the muslims you defend would be offended if they were confused with dhimmicrats. You should hear them whining on the islam online message boards, they see you as weak allies who are about out of usefulness. They think less of you than conservatives do, and that is saying alot. ”
Intelligence gathering from mom’s basement? Do you get a monthly Cheetohs stipend?
July 4th, 2005 at 12:48 amYour argument regarding the supposed importance of the seat occupied by Justice O’ Connor would have applied aptly to the seat held by former Justice White, especially given his predilection toward Conservative Jurisprudence in cases such as NJ v. TLO and, most pointedly, Bowers v. Hardwick. If we are to use your standard, Presidential deference shoud reign and the sitting president should hold the judicial philosophy of the seat’s prior tenant with about as much respect as President Clinton showed for the seat he filled with the former legal director of the ACLU.
July 4th, 2005 at 3:00 pm“accurate but fake  July 3, 2005″
you like that handle don’t you, but you would think your sides failed bid to derail the democratic process would embarress you, but that would take honor, we know you have none. But there can be only one, the original, your Daddy:
Comment by fake but accurate
You do realize that your comments, and those of the other two or three are about as substantive and intimidating as the unintelligible utterances of “holla back girls” on a high school campus, don’t you?
July 4th, 2005 at 6:23 pmI propose a litmus test for nominees:
July 5th, 2005 at 9:19 amHow would you vote in Kelo v. New London? If for Kelo, you’re in. If for New London, get lost.