May 03, 2005

Up Or Down

A question: What, pray tell, is the principled case for arguing that each judicial nominee must get an "up-or-down vote"? Why is this supposedly "fair"? I think Cass Sunstein made a pretty good argument here:
It may be granted that the Senate ought generally to be deferential to Presidential nominations involving the operation of the executive branch . . . The case is quite different, however, when the President is appointing members of a third branch. The judiciary is supposed to be independent of the President, not allied with him. It hardly needs emphasis that the judiciary is not intended to work under the President.

This point is of special importance in light of the fact that many of the Court's decisions resolve conflicts between Congress and the President. A Presidential monopoly on the appointment of Supreme Court Justices thus threatens to unsettle the constitutional plan of checks and balances.
Right-o. Most of the conservative commentary I've seen on this has harped on the fact that the president is being denied a "fair" chance at getting his nominees through. Poor Mr. President! Now insofar as modern conservative commentary mostly consists of batting doe-eyes at Bush, that's fair enough. But this debate shouldn't really be about the president, and Sunstein makes that point nicely: there's no reason that he ought to get his way on nominees. He's not hiring a personal aide here.

And the "up-or-down vote" question still remains. Again, why? Judicial nominees aren't supposed to work for the Senate, either. They work for the people of this country, and since it's either very hard or impossible for any configuration of majority rule, now or in the future, to override the decision of the judiciary, these judges out to be put into place with as wide a consensus as possible. The Democrats in the Senate, after all, represent more people in this country than their Republican counterparts, and there's no principled reason why the latter ought to be able to foist their choices on the former, especially when the Senate has well-established rules for preventing that.

The problem seems to be that people treat elections as war. If your party comes out victorious, you're the big winner, and you can do whatever you feel like because those are the spoils of war. To quote Dick Cheney: "We won the mid-term elections. This is our due." But that's not what elections, or democracy, are supposed to be about. Yes, yes, I realize I'm preaching to the deaf, mute, and blind here, but it's maddening to watch folks like Andy McCarthy over at the Corner yip and yap day after day about how the Democrats aren't playing fair and all nominees "deserve" an up-or-down vote. Unless you subscribe to the Dick Cheney theory of democracy, they "deserve" no such thing.
-- Brad Plumer 3:33 PM || ||