Senator Teddy the Hutt (D-Dead Girlfriend In The Passenger Seat) has a solution to the "problem" of Supreme Court decisions he dislikes -- require appointees to the Supreme Court (and, presumably, lower courts) to make a blood oath to rule in a liberal manner without reading the briefs, hearing the arguments, or knowing the facts of specific cases.

We know from their past decisions how all of the current justices interpret Roe v. Wade, yet they are not precluded from sitting on future cases involving abortion. Why shouldn't we also learn how Supreme Court nominees view that decision and other important cases? If all nominees were expected to answer these questions, the White House would no longer seek out "stealth" nominees whose views are largely unknown.

To protect the independence and autonomy of the courts, questions addressed to specific pending or future cases should be avoided. But there is no good reason for nominees to refuse to state how they would have voted in cases the Supreme Court has already decided. The facts, briefs, and oral arguments from those cases are all a matter of public record. Questions about decided cases should be at the heart of confirmation hearings, because they provide the most concrete information available about what kind of justice the nominee will be. Judges decide real cases. To be able to evaluate nominees in a meaningful way, the Senate and the public need to know how a nominee is likely to decide them.

Of course, in Kennedy's eyes, refusal to adhere to a liberal interpretation would render one unfit to serve on the Supreme Court, thereby negating the outcome of presidential elections that produce winners of a differing political philosophy. And it also guarantees "respect" for decisions that are wrongly decided -- for just as surely as support for Roe would be a litmus test today, I have no doubt that in 1950 we would have seen support for Plessy v. Ferguson -- by that time a precedent that was a full half-century old -- as mandatory for confirmation in the eyes of the Democrat majority in the US Senate. While that certainly would have avoided the myriad disruptions of American life caused by the overturning of that decision in Brown v. Board of Education, it also would have continued a manifestly unjust system of racial segregation.

Of course, Kennedy also wants to overturn long-standing principles of executive privilege, attorney-client confidentiality and the like in his effort to pack the Court with liberal ideologues. In his contempt for the Constitution, he would overturn two centuries of confirmation practices and seek to elevate ideology over competence as the standard for confirmation. Rather than remove partisanship and the politics of destruction from the confirmation process, Kennedy would make them permanent features, so that his actions in the Bork and Thomas confirmation processes would become the standard by which all future confirmations would be carried out.

Posted by: Greg at 11:04 PM | Comments (1) | Add Comment
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