Posted by Jonathan Adler:
Time for Republicans to Get Tough?
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242822178
[1]Ed Gillespie argues that it's time for Republican Senators to adopt
a less deferential approach to judicial nominations.
In leading the White House efforts to confirm Roberts and serving
as a "sherpa" for Alito's confirmation, I argued strongly along
with many Senate Republicans that Democrats would be mistaken to
change the historic standard for confirmation to the nation's
highest court. Since they did, however, those same Senate
Republicans would be mistaken if they didn't apply that same
standard to President Obama's nominee.
Republicans cannot accept the premise that it's okay for liberals
to vote against Supreme Court nominees who believe in a strict
constructionist judicial philosophy but not okay for conservatives
to vote against those who embrace empathetic activism on the bench.
The encroachment on executive prerogative is unfortunate, and its
polarizing effect is unhealthy. But the shift in the balance of
power from the presidency to Congress inherent in this approach is
less troublesome than the inevitable leftward shift of our highest
court if Republicans maintain the traditional standard while
Democrats deploy an ideological one.
I understand this view, even as I lament it. I continue to believe the
Senate should maintain a more deferential approach -- much like Senate
Republicans adopted toward Ruth Bader Ginsburg and Stephen Breyer. I
also fear there may be no going back. If Senate Republicans follow
Gillespie's advice -- and Gillespie is hardly the only one urging this
course -- I hope they will also promise to restore the status quo ante
if Senate Democrats will commit to follow suit.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/05/19/AR2009051902837.html?hpid=opinionsbox1
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