Ideology: Fair Game Since 1795
Ideology: Fair Game Since 1795
Conservatives Senators are tripping over themselves to claim ideology is off limits in questioning a Supreme Court nominee. History shows that’s not true.
In 1795, President George Washington nominated Justice John Rutledge to be Chief Justice of the United States. Rutledge, a former Associate Justice of the U.S. Supreme Court and current Chief Justice of South Carolina, was “well qualifed” by any standard, but Senate partisans blocked his nomination for one simple reason: ideology. Justice Rutledge opposed the Jay Treaty, a hot button issue in 1795. Because Senate Federalists couldn’t bear to see a Jay Treaty opponent on the Court, Rutledge’s nomination was rejected 14-10.
Unlike President Bush, President Washington respected the right of the Senate to reject judicial nominations. In 1789, Washington had even explained just how free the Senate was to do so: “Just as the President has a right to nominate without assigning reasons, so has the Senate a right to dissent without giving theirs.”
– Ian Millhiser
Topic Cloud
ArchivesBlog Roll
Don’t you know that all of George Washington’s campaigns were financed by George Soros?
July 5th, 2005 at 2:50 pmSpeaking of history of the supreme court, there’s an interesting graph over at: http://www.spudart.org/supremecourt. It shows how many appointments each president has had over the years, and that we are in the 2nd longest drought of not electing a new member to the Supreme Court. It’s about time we got someone new on there. History only supports that.
July 5th, 2005 at 2:57 pm14 to 10 would not have won with the current super majority scheme of the Democrats. I don’t think George would have approved of that.
July 5th, 2005 at 3:01 pmI’m pretty sure George Washington has a book to sell.
July 5th, 2005 at 3:43 pmAhh Gordon, you are showing your hand before you even start to wager. These are traits that overly confident fools use all the time. The truth of the matter is that it doesn’t matter what you or I think, but 100 men and women in Washington DC.
Oh yea, next time be somewhat more discrete. Then you may succeed in making others think. Your way just gets us to go on to the next message all the quicker.
July 5th, 2005 at 3:46 pm[...] Keep this in mind during the upcoming Supreme Court nomination debates: “Just as the President has a right to nominate without assigning reasons, so has the Senate a right to dissent without giving theirs.” George Washington, 1789 [...]
July 5th, 2005 at 3:50 pm[...] [...]
July 5th, 2005 at 3:50 pmI would expect that anyone that bush nominates will make Attila the Hun look progressive.
July 5th, 2005 at 3:59 pmWhomever bush43 nominates will make Bork blush.
July 5th, 2005 at 4:22 pmHistory fan – is it possible no Supreme Court Justice wanted to retire during this Bush’s administration and that’s why such a long drought? Even Rehnquist doesn’t seem to be in a hurry to retire, and O’Connor is rumored only to retire to take care of her husband.
July 5th, 2005 at 4:26 pmTwo comments:
1) Note that Rutledge was rejected by a vote of 14-10. In other words there was a vote by the Senate, not some stall tactic such as blue slips or a filibuster. The Senate has the absolute right to reject any particular nominee but it also has the responsibility to actually vote. Tactics to “bury” nominees without a vote are inappropriate and a shameful aviodance of duty whether done by Jesse Helms or Ted Kennedy.
2) Since any senator is free to vote up or down for any reason, ideology most certainly is and always has been one of the reasons the Senate may vote to reject a nominee. They problem I and many others have with a lot of senators is that they want to vote on the basis of ideology without admitting they are doing so. This basic lack of intellectual honesty has brought about the process of “borking” whereby nominees are smeared with the attempt to justify a no vote. If a senator wants to vote against a person because he doesn’t like that person’s politics, fine. Just be honest enough to admit it.
July 5th, 2005 at 4:39 pmTom – how many blue slips were issued during the 8 Clinton years. I don’t know, google does I’m sure. But I only wish that dems had the opportunity to put their minds forth like repubs did then. Then turn around WOULD be fair play. Unfortunately you and others seem to think fair play is for losers.
To that I say, go ahead and get dumbya to nominate another Bork. When the Dem’s filibuster (quite legally) go ahead and blow a gasket, stroke out, whatever. We won’t forget to tell you “I told you so”.
My hope – he nominates a moderate. he won’t though & I know it. Bork redeaux here we come.
July 5th, 2005 at 5:44 pmTom,
The Senate as a body has a right to act under its own rules – and that was also what Washington was saying. He didn’t say “they are required to give me a vote”, only they have the right to ‘refuse’ to approve. A filibuster is a long accepted means of refusing to approve that has been used by both parties.
CONservatives always like to try to make some nonsense quote about this being a ‘christian nation (a huge lie by the way)’ and setting precidents based on that, yet Washington was completely clear here to all but the most stupid and stubborn idealogues that a rejection by ANY means that are within the rights of the senate body are legitimate…
All I can say is that the leaky boat of democracy requires compromise, and hopefully both sides will come to a reasonable place and keep the Christian Talibanjos out of the key parts of the process. Religious zealots are as unamerican as you can get…
July 5th, 2005 at 8:09 pmIdeology, as far as the Bush conservatives are concerned, is only off-limits when it involves the ultra right-wing fascist crap that Dumbya keeps nominating. These jerks are cut from the same cloth as the right-wing scum that kept Clinton nominees from making it to federal appeals benches based on their ideology. Just like a bunch of cry-babys they have to get their way. To them the rules only apply when they want them to, ie the filibuster. This group of power hungry a**holes have been waiting since the ’80s, when Reagan was the last cowboy prez, to regain control over this country and want to make sure everyone will suffer when they loss power again. This way, as is always their way, they can blame the opposition for all the problems they themselves have created.
July 5th, 2005 at 10:07 pmAlthough I agree that the Senate may question a Supreme Court nominee on the nominee’s previously expressed ideology, I disagree with that “[u]nlike President Bush, President Washington respected the right of the Senate to reject judicial nominations.”
There is no evidence of Bush’s disrespect for such Senate right; rather, it appears the Democrats do not share Washington’s respect because their use of the filibuster precludes the Senate from accepting or rejecting nominees.
Although a nominee’s expressed ideology is fair game for inquiry by the Senate, questioning a nominee on the nominee’s previously unexpressed ideology is off limits if the subject is one that may come before the Court. The obvious reason is that a nomonee’s responses to hypothetical questions on such issues may be cause for recusal if the issues come before the Court.
The irony of the entire exercise is that a nominee confirmed by the Senate has no obligation to decide in accordance with the representations made to the Senate concerning judicial philosophy or ideology. If a nominee expressly represents that he or she is pro-choice, nothing can be done if after confirmation the same person takes a completely opposite position as a Supreme Court Justice.
July 6th, 2005 at 7:52 pm— from kindness
“how many blue slips were issued during the 8 Clinton years”
I don’t know how many. I’m sure one could do the research. In fact blue slips were issued during the Clinton, Bush I, Carter, Ford, Nixon, Johnson, etc. administrations by Democrats and Republicans alike. I would agree with the idea of a senator being able to TEMPORARILY stop action on a nominee if the true intent was to obtain additional information about the nominee. However, in practice that was rarely the case and, therefore, to my way of thinking these were largely improper.
“get dumbya to nominate another Bork”
Quite frankly, I think “another Bork” would be a wonderful addition to the court. One small tidbit about Judge Bork that seemed to get lost in the shuffle during his confirmation hearing was that he had never been on the “losing” side as an appeals court judge except for those occasions where his dissent was later upheld by a higher court. In other words the only times he did not side with the majority were times when the higher court found that the majority was wrong. I’m not sure what standards others look for in a judge but to me a judge who was NEVER reversed seems to be one who has a good grasp of the law and how to apply it.
— from Ryan Neat
“CONservatives always like to try to make some nonsense quote about this being a ‘christian nation (a huge lie by the way)’ and setting precidents based on that, yet Washington was completely clear here to all but the most stupid and stubborn idealogues that a rejection by ANY means that are within the rights of the senate body are legitimate…”
If I made some nonsense claim about this being a ‘christain nation’ in my prior post, I apologize. That was not my intent. I have re-read the post several times and I don’t belive such a claim was expressed or implied.
I agree with you that any reason, including the ideology of the nominee, is fair game as a cause for rejection of a potential justice. I thought that I was quite explicit on that. My issue is not that senators base their decisions on ideology, but rather that they do so while denying that to be the case. I’m meerly asking for honesty on the part of our elected public servants – admittedly, a rather forlorn hope.
I would suggest a brief review of the Federalist Papers for an interesting discussion of how the “advice and consent” role of the Senate was expected to be exercised by the actual founders. I don’t have my copy handy right now but if anyone is willing I’ll be happy to look up the actual numbers that discuss presidential appointments and senate confirmation. The essential view presented there was that the president can name anyone he wishes and the senate can accept or reject for any reason. The president would supposedly have an incentive to name qualified persons so as to not have nominees rejected and the senate would have an incentive to confirm qualified persons because they have no role in selecting nominees and thus could not reject one with the expectation that they could help choose the next one. Rather, if the senate rejects a nominee the president is free to send back anyone else of his choosing.
July 6th, 2005 at 10:15 pmI have to wonder where all of the true-believer outrage is for the republicons’ attempts to filibuster Paez, Berzon, and Sarokin (to say nothing of the non-judicial appointments the ‘cons have attempted to filibuster – with mixed results – in recent years)…
It’s nice to see that so many are so willing to prove the ‘cons right in their estimation of the intelligence of their own base.
July 7th, 2005 at 3:14 amTo kindness –
“how many blue slips were issued during the 8 Clinton years”
I don’t really know how many were issued during the Clinton administration or, for that matter, during the Bush I, Reagan, Carter, Ford, Nixon, Johnson, etc. administrations either. Whenever it was done with the intent to stall an acutal vote on a nominee it was, in my opinion, wrong; no matter whether it was done by a Democrat or Republican.
“get dumbya to nominate another Bork”
Actually, another Bork would suit me just fine. However; when I say that I don’t necessarily mean someone with Bork’s political views. Rather, I would be encouraged to see someone with Bork’s judicial record be nominated. One small tidbit of fact that seemed to be overlooked during Bork’s confirmation hearing was that during all his time on the bench, the only times he had not sided with the majority were times when his dissenting opinion was upheld on appeal by a higher court. In other words, in all the decisions he had written or joined, he had NEVER been reversed. Quite frankly, if every single decision a judge had rendered had been upheld it would indicate to me that he had a pretty good grasp of the law and how to apply it. Few judges can sit for long without some reversals. To never experience one is quite remarkable. Wouldn’t you agree?
After all what difference does a judges’s politics matter if he is willing and able to set his personal views aside and rule strictly on the merits? If he can do so his politics are irrelavent. If he cannot I don’t want him on the bench ever if he agrees with my views 100%.
July 7th, 2005 at 8:42 am“They want to block and filibuster whomever Bush nominates”
According to this…
http://www.pfaw.org/pfaw/general/default.aspx?oid=14172...
214 Bush nominees have been confirmed and 5 have been blocked.
That is a 98% approval rate.
The claim that democrats are acting inappropriately and unfairly does not seem reasonable to me.
July 10th, 2005 at 12:23 pmJim Crow Laws Employment Law Us Supreme Court
I can not agree with you in 100% regarding some thoughts, but you got good point of view
March 24th, 2008 at 6:06 pmNext Supreme Court Justice To Retire
This article sounds well, but how everything is related together?
April 5th, 2008 at 8:35 amJack
There are varying schools of thought on your subject. I happen to agree with you – most of the time. Keep it up.
April 10th, 2008 at 4:39 pm