Monday, July 04, 2005

On confirmation: in theory. 4th of July commentary.

Hi, sports fans.

I read in the NYT under Overview, an article titled "Senators Clash on Questioning a Court Nominee," By CARL HULSE and ADAM NAGOURNEY, Published: July 4, 2005... [link not provided because hey, if it's not going to be freely available, why link to the NYT?]

The Senators are staking out their positions.

Schumer says "All questions are legitimate." "What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we're not going to know their views. But that's not going to work this time."

Sessions responds that (quote from article begins) the push for such detailed positions was highly objectionable and suggested that Democrats might be forming a strategy of trying to derail a nomination on the ground of withholding information. "You cannot ask a judge to prejudge a specific matter," Mr. Sessions said. (end article quote).

Now, these two Senators are talking right past each other.

The views of judges on matters of jurisprudence cannot possibly be beyond the reach of Senatorial inquiry. The prejudging of specific matters, it is fairly clear, is not one of the areas reached by Senators' questions. You can't ask, "If Bush v. Gore reoccurs in Florida state court in 2008, how would you vote then?" You can ask for analysis, criticism, or reaction about Bush v. Gore (2000), as you can of Brown v. Board, Roe v. Wade, and the nominee is free to answer or deflect the question ("I would vote to uphold the law of the land"/ "I cannot say without knowing more about the facts of the case in the controversy at hand" / "What do you really mean by your question, Senator? How can I answer in a way that doesn't blacklist me, because I personally disfavor abortion, based on my religious scruples...") as they see fit.

Mr. Session's observation is remarkably obvious: the Democrats are, indeed, positioning themselves to be able to properly bork (by which I mean, honorably reject a flawed candidate) a nominee who is not prepared to honestly answer questions in ways that stand up to scrutiny. As a sage philosopher once said, "Duh."

Judge Bork, with due respect to a smart man, was a raving loony. What decisions did he favor overturning? Not just Roe v. Wade, I mean what else? How far beyond the pale was that extremist? Bork was Borked, you may recall, by moderate Republicans, moderate Democrats, liberal Democrats, and, I fervently hope, everyone else in the Senate who knew that this jerk should never have been seriously considered, let alone nominated.

Bork's a self-made martyr, an uncooperative zealot who would not have been a good Justice. I'm willing to hear different, and I'd be willing to hear him speak his side or debate his position, but I'm tired of hearing about him as an example of, well, anything.

"The Democrats started it" - please. Fortas was probably disqualified by the ethical accusations - as should Clarence Thomas have been, his intellect aside - but the borking began long before Bork. And it wasn't "the Democrats" or "the Republicans," necessarily. Democratic nominees were blocked, black judges were rejected on the basis of race plus politics (Senator Helms, I'm thinking of you), and this is an old, old game. Look back to the acrimony in the 1790s. It's an American tradition.

In theory, I'd love to have the most able, brilliant, compassionate, deft, eloquent, fair (I'm done with the alphabetical list now) and generally outstanding Supreme Court nominee possible. In practice, we'll get whoever's highest on the President's list who is confirmable. May that approach as closely as possible the person whose qualifications I described.

Happy Fourth of July to you all, happy Filipino-American friendship day to readers in or from the Philippines, happy anniversary of Alice's Adventures in Wonderland by the Rev. Charles Lutwidge Dodgson (aka Lewis Carroll) - see also This Page at Wikipedia (July 4), This Day in History at the history channel, and of course my favorite Scope Systems (not to be confused with Snopes), with AnyDay in History, which for today's date (whatever it may be when you read this) is here. I'm not sure what Scopesys does, but they have a webpage here. They've been maintaining the AnyDay page for years and years, and so a shout out to them.

Happy Independence Day, America.


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