No You Can’t, And No You Won’t

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"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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