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Friday, May 18, 2007

Does Ideology Matter?

On the Volokh Conspiracy this week, Ilya Somin and Jonathan Adler debated whether a judicial nominee’s political ideology is an appropriate basis on which to decide whether to confirm her.

Adler argued that “the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology.” He believes that we are in a “downward spiral of politicization” of judicial nominees which began during the Reagan presidency. He suggested that the Democrats, who control the Senate currently, could set a good example and hope that the Republicans follow suit when their positions are reversed. (And, in our minds, the real question is whether there is any foundation for such hope, given Republicans' past willingness to upset existing rules and traditions to block Democratic nominees and confirm their own.) Or, he suggests that both parties could agree to a set of rules which will bind them beginning in 2009.

Somin, on the other hand, believes that considering a nominee’s ideology is perfectly appropriate:

Political ideology - at least in so far as it influences judicial decisions - is an extremely important attribute of a judicial nominee. … In cases where the relevant statute or constitutional provision is very clear, ideology may not influence the outcome much. But where there is vagueness and doubt (as there is with several important parts of the Constitution), both empirical research and common sense suggest that ideology may matter a lot. Moreover, the rise of nontextualist modes of interpretation has led to situations where ideology might influence the interpretation of even clear and unequivocal legal texts.
Somin argues that presidents have always taken a potential nominee’s ideology into account and that the Senate, although it should also weigh other considerations, has every right to do likewise.

We have to agree with Somin on this one. As we continually make clear, federal judges are appointed for life and make decisions everyday which impact the rights and liberties of all Americans. Being “qualified” is not enough. The American people have a right to know how judges view the Constitution and to urge their senators to affirm them or reject them as a result of these views.

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