10/28/2005 01:21 am ET Updated May 25, 2011

Scher's Folly, or How NOT to Think about the Confirmation Process

In Bill Scher's reply to my post The Next Nominee, he suggests that we should rally "the public behind liberal constitutionalist principles" and that we now "have a golden opportunity to force Bush to nominate a truly impartial judge." He is right on the first point, but profoundly wrong -- and dangerously naive -- on the second. More important, he believes the confirmation process should be nothing more than a battle of political will, a free-for-all in which each senator votes based on nothing more than agreement or disagreement with a nominee's judicial philosophy. Further, he apparently believes that a senator who disagrees with a nominee's judicial philosophy should not only oppose confirmation, but automatically join a filibuster. And, of course, though he doesn't say it, it follows that on this view of the process those senators who support confirmation should automatically vote to abolish the filibuster. Why not just bomb the Supreme Court and get it over with?

Scher's view of the process disserves the interests of liberals and undermines the Supreme Court as a critical institution in our constitutional system. Scher argues that Democrats should take advantage of Bush's weakness at the moment to force him to appoint someone more acceptable to the left. I agree. But we have already achieved this with the Roberts and Miers nominations. Bush said during the 2004 campaign that he intended to appoint justices like Scalia and Thomas. Scher may not know the difference, but Roberts is no Scalia or Thomas, and neither is McConnell or Wilkinson. Just as there is a big difference between William Douglas and Ruth Bader Ginsburg (both "liberals"), there is an equally large difference between Scalia and Thomas, on the one hand, and Roberts, McConnell, and Wilkinson on the other (all "conservatives"). It is a big mistake to think all conservatives are the same.

Moreover, there are many reflexively right-wing candidates the Republican right will now push on Bush. That's where the real danger lurks. McConnell or Wilkinson, although certainly conservative, would be excellent justices (assuming one cares about the quality of judicial decisionmaking, in addition to particular results). They are respectful of precedent, intellectually first-rate, and fair-minded individuals. That's a lot better than the alternatives.

But why not pull out all the stops and filibuster anyone we wouldn't appoint ourselves? Such an approach might seem to be in the immediate self-interest of liberals, but if the confirmation process were to collapse into blatantly political catfights it would not serve the long-term interests of liberals -- unless Scher thinks we will never again hold power. In devising a strategy, it is necessary to think not just about immediate results, but about the process itself. A further escalation of the politicization of the confirmation process would undermine still further the credibility of the judiciary. If you believe, as I do, that courts in general, and the Supreme Court in particular, play a fundamental role in our constitutional system, then you certainly don't want to embrace Scher's folly. His vision is perfect for those who want a weak Supreme Court, but that, in my view, is not how to "rally the public behind liberal constitutionalist principles."