We Support Judge XX


At last, we seem to have reached the apogee of Congress’s stupidest tradition. We refer of course to the tradition in which one party opposes the other party’s Supreme Court nominee simply because he or she is the other party’s Supreme Court nominee. It’s never been clear to us what each party expects to gain from this mechanical opposition: If you defeat one nominee, the president simply nominates another, and the second may be less ideologically likable than the first.

But perhaps today’s lawmakers learned something crucial from the nomination of Robert Bork in 1987. Senator Ted Kennedy and his ally Sen. Joe Biden defeated the nomination of a decent man and a distinguished jurist by the simple expedient of calling him a racist and a monster. As a reward they ended up with an intermittently amenable alternative justice: Anthony Kennedy.

Which brings us to the present moment. In the intervening three decades, the two Senate caucuses have become more and more prone to unreasonable—indeed unreasoning—opposition. Partly this is a result of the federal judiciary’s arrogation of powers not intended for it, and partly it’s a result of political polarization across the nation. In any case, by 2009 only 9 of 40 Republican senators voted for Judge Sonia Sotomayor to the high court. A year later, only 5 of those 40 voted to confirm Solicitor Elena Kagan—this despite the fact that Kagan was vastly superior to Sotomayor as a judge and a scholar.

But at least some Republicans in 2009 and 2010 could bring themselves to vote for Barack Obama’s nominees. One of those, Sen. Lindsey Graham, was from the reddest of red states, South Carolina, and took ferocious criticism for his votes. Last year, only 3 Democrats of 49, and none of these from blue states, could bring themselves to vote for the unquestionably qualified and thoughtful Neil Gorsuch.

In the contest of sheer unreasonable antipathy, however, Democrats win decisively. Some, such as Pennsylvania’s Bob Casey, announced their opposition before President Trump even announced his choice. One assumes these Democrats are only reflecting the irrational hatred of the interest groups that support them: The Women’s March, for instance, mistakenly sent out a press release after the announcement of Brett Kavanaugh saying, “In response to Donald Trump’s nomination of XX to the Supreme Court…” Senator Corey Booker, too, suggested that it didn’t matter who the nominee was: “I’m well on the record with saying that, before it was even Kavanaugh, that this is a very problematic constitutional moment for this country…”

Others based their opposition on crass political grounds. Academic qualifications, career accomplishments, judicial philosophy, and personal character, in this view, matter less than whether the nominee is on the right or left. “Brett Kavanaugh has proven he cannot be trusted to defend a woman’s right to choose,” Rep. Nancy Pelosi announced, despite not having a vote on the nomination. “Americans don’t want Trump and Brett Kavanaugh’s extreme anti-choice agenda,” tweeted Rep. Sheila Jackson Lee. Senator Elizabeth Warren, similarly, announced that “there’s a lot to dislike about Brett Kavanaugh’s record—including his hostility toward consumers.” Because as everyone knows, “hostility toward consumers” is a thing that should never be said about a judge.

These and scores of other tweets and remarks from Senate Democrats and their ideological cobelligerents cause us to wonder: Do Democrats understand that the judge’s duty is not to impose their political preference but to interpret the law, whether or not they happen to like the law? Senate Democrats are intelligent people, so we assume the answer is Yes. The other question, then, is: Do they care?





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