Now that the Notre Dame controversy is behind us, we can move on to something non-controversial like President Obama’s upcoming Supreme Court nomination. I am on record supporting Al Gore because his nomination would acknowledge, if not rectify, the supreme injustice done to him in Bush v. Gore. But, I recognize that Gore’s age and lack of a law degree make this pick unlikely.
Almost all the other names being suggested were, until yesterday, unknown to anyone outside the legal community. The idea of selecting a Latina like appellate court judge Sonia Sotomayor appeals to people because the selection would add another chapter in America’s fine history of inclusionary politics. And, temperamentally, she sounds like the kind of woman who would go toe-to-toe with Justice Antonin Scalia. But, let’s be honest. We have no idea how she will turn out, what her jurisprudence will look like. If you doubt it, ask Papa Bush if he got what he bargained for in selecting David Souter?
The nomination process has morphed in recent years. This morning’s Post has an op-ed by Ed Gillespie, former head of the Republican National Committee, who played a key role in the confirmation hearings for both Chief Justice John Roberts and Justice Samuel Alito. Gillespie says that Democrats changed the rules in the Bush years, believing that it was okay to question "a judge’s philosophy, ideology and record," as then-Sen. Barack Obama said.
Gillespie contrasts this with what he believes were the pristine judgments of the GOP in the Clinton years. He quotes Sen. Orrin Hatch: "If a nominee is experienced in the law, highly intelligent, of good character and termperament, and – most important – gives clear and convincing evidence that he or she understands and respects the proper role of the judiciary in our system of government, there mere fact that I might have selected a different nominee will not lead me to oppose the President’s nominee." Of course, the two words "proper role" are carrying a lot of water in that quote and Gillespie knows it.
It has never made sense to me that Senators are expected to vote to confirm someone with whom they disagree sharply unless they find out she smoked pot or that he failed to pay taxes for the nanny. There was a cat-and-mouse game that only had the effect of destroying some people’s personal reputations. If the reason you are searching for the personal dirt is to keep someone off the court because you disagree with their judicial philosophy, isn’t it better to just permit disagreement as a legitimate reason to oppose a nominee?
The other absurdity of the nomination process is the belief that a nominee should never comment on an issue that might come before the court. This allows them to avoid answering what they think about Roe v. Wade or Hamdan v. Rumsfeld. It is true that no nominee can predict the exact nature of the cases that will come before them, but they should be required to sketch out their general views on such landmark cases. Everyone has an opinion on Roe and we have a right to know what that is before voting to confirm.
I suspect President Obama will select someone in the mold of Justices Ruth Bader Ginsberg and Stephen Breyer, a nominee with stellar credentials, piercing intellect and a left-leaning but essentially moderate track record. (Whatever you think of the Clinton years, I think everyone agrees that his Court picks were among his finest decisions.) And, just so, I suspect President Obama will have no problem with Republicans applying the standard he used in assessing Roberts and Alito. The main thing that changed between the Clinton’s and Bushs’s nominations was Ed Gillespie’s point-of-view.