Thursday, July 01, 2010

Process over principle

I'm reposting some recent comments I left over at Justin Taylor's blog:

steve hays June 30, 2010 at 3:19 pm
Matthaeus Flexibilis

“Fourth, as much as I disagree with her politics and fully expect her to be another liberal Justice, I (so far) support her as a qualified appointee to whom the Senate should give their consent, even if many disagree with her politics. As with Alito, qualifications are the key, not agreement.”

Why are qualifications key, not agreement? If judges presume to act as self-appointed social engineers, then their ideological views are key. For they take it upon themselves to set social policy for the rest of us.

“Ad hominems aside, what is your alternative? Do you think the Republicans in the Senate should block Kagan and wait for Obama to nominate a conservative or a pro-life liberal?”

If Republicans can play out the clock until November, then regain control of the Senate, that would make a difference in who Obama could nominate with the reasonable expectation of confirmation.

BTW, it’s better to leave the seat vacant for a while than fill it with a destructive justice.

“It won’t happen, and it would back-fire against Republicans if it could.”

How do you know it will backfire? What historical evidence do you have that the electorate in general ever makes judicial nominations a priority?

“Elections mean something, and so Obama is entitled to nominate qualified individuals of his political persuasion to the bench.”

i) Senators aren’t elected to represent the interests of the president. Rather, they’re elected to represent the interests of the voters who put them in office. They don’t work for the president.

ii) Obama is not entitled to nominate individuals who will subvert the democratic process.

iii) Even many of those who voted for Obama have since become disenchanted with his administration.

“The ‘advice and consent’ clause, as I understand it, is mainly intended to keep out cronies and grossly unqualified persons. It’s all well and good to examine judicial philosophy, and perhaps one could be justly excluded for that reason, but since Bork, no one will give straight answers on that count anyway. So it comes down to reasonable qualifications, and on that count, she passes (AFAICT so far).”

We don’t need them to give straight answers if we can determine their social views and judicial philosophy on other grounds.

“BTW, When we elect a conservative to the White House, I will make the same exact case for his/her nominees.”

That’s a mindless, mechanical standard which disregards the merits or demerits of any particular nominee.

steve hays July 1, 2010 at 8:34 am
Matthaeus Flexibilis

“On qualifications, see also my reply above to Kenneth.”

You mean this statement?:

“Do they have a decent law degree and significant legal experience, whether in practice, in government, or in teaching? Do they have the respect of their peers? (Kagan does on all counts.)”

Those are disqualifications. She has a law degree from a liberal law school. She’s served in two Democrat administrations. She has been the dean of a liberal law school.

To appeal to the respect of her peers is circular if her peers reflect the same elitist outlook which is the source of the problem in the first place.

Her professional experience is the experience of a liberal social activist. That’s why folks like her go into law and gov’t. To leverage their social views through the coercive powers of the state.

“But she’s not going to reveal much of anything anyway”

That’s irrelevant. There’s no presumption that she’s a closet conservative and advocate of judicial restraint unless proven otherwise.

“A fair point, but my overall point is that she’s certainly liberal but not so far out there that many Senators are going to die on this hill — nor should they”

You can’t get much further “out there” than a lesbian.

“Moreover, there’s some reason to think that she’d act as a consensus builder with those whom she disagrees with, which could be a silver lining.”

A liberal consensus-builder is more damaging than a liberal loner.

“I’m just saying that Republicans are already tarred as the party of, in the words of Palin, “not just ‘no’, but hell no!”

How is that a political liability in the current political climate?

“That makes for great right-wing rallies, but it doesn’t always help with those vital independents.”

Independents tend to be libertarians. They resent overreaching gov’t. Now more than ever.

“An obstructed Kagan nomination would be one high-profile example of that ‘my way or the highway’ tendency.”

Depends on how it’s packaged. It would be easy to present Kagan as another out-of-touch liberal elitist who can’t wait to dictate to the rest of us how to run our lives. The electorate is in no mood for more intrusive, overbearing judges.

“That being said, presidents are generally very smart men with smart advisors who can foresee who has a better than a snowball’s chance in getting through.”

You were the one who framed your objection in terms of Republicans blocking her nomination. If you think that hypothetical is unrealistic, then why bring it up?

“That’s not really the intent of the ‘advice and consent’ clause (where’s conservatives’ originalism now?).”

That’s cute, but original intent doesn’t mean leaving one Constitutional clause intact while changing everything around it. That’s before the courts became so usurpacious.

Was it the intent of the framers to empower judges to strike down state and federal laws if they conflict with the social values of the judge? Was it the intent of the framers to elevate the judiciary to be the most powerful branch of gov’t, to which the elective branches are ultimately and unilaterally answerable? Was it the intent of the framers to make judges the arbiters of social morality? Were there Warren Court-style justices in the early days of the Republic?

Senators have a duty to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” And that carries with it a standing duty to defend the Constitutional rights and liberties of the American people against the unconstitutional encroachments of a tyrannical judiciary.

“I view it as consistent with the Framers’ intent for Senate confirmation…”

Was it the framers’ intent to give judges the right to take away our rights? Was it the framers’ intent to confirm judicial nominees who subvert popular sovereignty and become little King Georges on the bench?

And there’s more at issue than the intent of the framers. There is also the intent of the states which ratified the Constitution. Did the states which ratified the Constitution mean to authorize federal judges to strike down state laws that conflict with the social agenda of a federal judge?

“…and consistent with what many conservatives were saying around the time of Bush’s SCOTUS nominations — which I agreed with then as now. The reasons for refusal must be ‘special and strong,’ and I don’t think that case was made by Democrats against Roberts or Alito any more than it can by Republicans against Sotomayor or Kagan, though there is a disagreement on judicial philosophy in all cases.”

Lindsay Graham doesn’t reflect my views. John McCain doesn’t reflect my views.

And it’s not as if Democrats believe in fair play. It’s not as if they reciprocate when they come to power. They don’t honor your gentlemen’s agreement. They do whatever it takes to advance their agenda. Look at Obamacare.

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