Tuesday, May 26, 2009

The Griftdrift Judicial Appointment Philosophy

It's pretty simple.

I don't give a damn about ideology.

If they're qualified - they should be confirmed.

Sotomayor is qualified. Confirm her.

Move on.

15 comments:

Joeventures said...

Are there any on the court who you would say were not qualified when nominated?

griftdrift said...

nope

griftdrift said...

Let me modify that a bit. I've said in the past that Thomas' credentials were a little thin and his product on the court has pretty much played that out. He's the on that I probably would not have voted for if I'd been a Senator.

But certainly not for the reasons that were popular in the day.

eightpercenter said...

This will be interesting. She was a Bush 43 appointment to the appeals court. She is hispanic, a group that many in the GOP want to attract to their party. Her record is somewhat liberal, but she sided with white firemen in a reverse discrimination case. Rove was dancing around the nomination on Fox yesterday attempting to take both sides on the issue. Mitch McConnell knows she will be approved but must decide if it is worth a fight.

Sara said...

That's not right, eightpercenter. She was a Clinton appointee to the appeals court (1998). She was a Bush 41 appointee to the Southern District of NY (1991). And apparently that initial appointment came about through a deal with Sen. Daniel Patrick Moynihan, where he essentially got to choose a judge for federal district court in NY (at a time when Dems controlled Congress so Bush 41 had incentive to nominate people with Dem support who would be confirmed.)

I think Thomas had weak credentials when nominated, and I also think Rehnquist did way back when he initially got the nod. However, Rehnquist eventually grew into the chops though he was considered barely qualified early in his tenure.

My own personal test is similar to griftdrift's, though what I believe constitutes minimal qualifications is a higher bar. I didn't oppose the confirmation of Alito or Roberts even though I disagree with their judicial philosophy, because both were undeniably qualified through their prior experience. Roberts had argued dozens of cases before the court and had been a federal appeals court judge. Alito had been on the appeals court for a decade.

But I do think there are times when even someone who is qualified should be opposed because their views are extreme to the point of calling into doubt their ability to uphold the Constitution and the rule of stare decisis. Robert Bork fit this bill for me. I don't think conservatives can make this kind of case against Sotomayor, she is not that far out on the fringes of legal thought to justify that level of opposition.

griftdrift said...

Would a conservative be able to make the same argument (Bork) against Blackmun?

Sara said...

Are you sure you meant Blackmun? He was appointed by Nixon and was a moderate conservative for several years on the Court before becoming more liberal over time, so I don't see how conservatives could have Borked him at the time of his nomination. He was also confirmed unanimously. :-)

(He's also my favorite SCOTUS justice.)

griftdrift said...

I meant a Blackmun type justice whose judicial philosophy included the type of "creative thinking" exhibited in Roe. Not necessarily Blackmun himself.

Sara said...

Well, I think if you had a nominee with an extreme judicial philosophy on display prior to his or her nomination (which Bork did by virtue of his writings while a law professor), and who went into confirmation hearings announcing dozens of precedents he or she would like to see overturned (which Bork did at his Senate Judiciary Committee hearing), then yes, I would believe conservatives would have a right to fight and filibuster that nominee. But I'm not sure Blackmun's "creative thinking" on Roe fits the bill for what I'm calling extreme unwillingness to follow existing precedent or to respect the Constitution. There was precedent behind Roe, most notably Griswold but other privacy cases as well. I know people like to believe Roe was carved entirely out of thin air, and certainly more policy-making occurred in that decision than in most, but it was hardly a complete repudiation of existing precedent or of constitutional principles.

Here's the sort of thing I am thinking of: if someone like Catherine MacKinnon were nominated for the Court, I would expect a huge fight and a filibuster. She advocated such radical changes to certain legal concepts that it would be very tough to say that she would uphold stare decisis on those issues. Law professors make the worst nominees for this very reason--they take public controversial positions on hypothetical issues. Judges are safer in this regard because they almost never make out of court statements on hot button issues, only rule on the issues before them, and they're always susceptible to being overturned.

griftdrift said...

Catherine McKinnon is a much better example. And that's a good thing because I don't really want to go down the rabbit hole of Roe.

Icarus said...

I think the Republicans are making a huge mistake if they decide to fight this one head on. Elections have consequences, and if they decide to pander to "the base" to score points, they will most likely just turn off "the middle" that they need to actually win.

That said, there is one talking point I saw this morning that does give me concern. It claims that She has been overturned 60% of the time by the Supreme Court. If true, does that make her "qualified"?

machine2473 said...

Icarus said...
"That said, there is one talking point I saw this morning that does give me concern. It claims that She has been overturned 60% of the time by the Supreme Court. If true, does that make her '"qualified'? "

That depends. Supposedly, out of 380 rulings total she's had only five reviewed at the Supreme level, three of which were reversed. The 3-out-of-380 ratio seems far less than 60%.

To me, the only curiosity about Sotomayor (albeit minor) is which were reversed and rendered, as opposed to reversed and remanded.

Icarus said...

If that's how the 60% is derrived, then I withdraw the concern.

Sara said...

Plus I wonder out of those overturned cases, how many she authored vs. just being part of the majority on the panel. Appeals Courts are weird, they have 3 judge panels but the entire circuit can also rehear the case "en banc." So she may have been voting with the majority either on a 3 judge panel or en banc on decisions that were overturned, but I'm not sure I would ascribe the same significance to a case in which she was merely on the majority side of the panel as I would district court level decisions rendered by her alone.

machine2473 said...

Sara, et. al.,
SCOTUSblog recap