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Tuesday, December 2, 2008

Misplaced Deference

Whenever we feel the need for a chuckle, we can always count on the Wall Street Journal editorial board. This weekend was no exception. Though there are no unicorns or rings forged in Mordor (we think), it seems as though the members of the ed board are constructing some sort of fantasy world.

They suggested that a gesture of bipartisan good will from President-elect Obama would be the eventual renomination of highly controversial judicial nominees, including Steve Matthews and Judge Robert Conrad to the Fourth Circuit. You know, so as not to “play politics with the national security cases that frequently come before that court.” Of course, the Journal conveniently overlooks the fact that President Bush was playing politics by nominating them in the first place.

We are then treated to a discussion of the apparent absurdity of considering a judges ideology. Right. Because clearly ideology isn’t a consideration when selecting lifetime appointees to the federal bench. This contention is ridiculous. Of course ideology matters. It certainly mattered to President Bush, who selected his nominees based on their views. After all, judicial philosophy is critical. On this, senators from both sides of the aisle, legal scholars and even Supreme Court justices agree. Former Chief Justice William Rehnquist, Senators Orrin Hatch and John Cornyn and legal scholars Charles Black and Anthony Lewis, among many others, have noted that considering the views of a nominee is central to evaluating his or her fitness for the bench.

The WSJ also claims that President-elect Obama’s “No” vote on Chief Justice John Roberts is a “skeleton.” First, it is no secret. Second, it is hardly something of which to be ashamed. From fair pay to school desegregation to protecting unfettered presidential power to undermining constitutional and statutory protections, the Chief Justice’s time on the bench only bears out the reasons Barack Obama, and 21 other senators, voted no on the nomination.

The WSJ editorial pages have spent the last eight years crying out for the deferential treatment of a president’s nominees, including speedy hearings and quickly-scheduled up-or-down votes. We are sort of tempted to start a pool on how long it will take them to change their tune. Of course, they are still calling for deference to a president’s nominees. Unfortunately, they are calling for deference to the wrong president.


Unknown said...

No The Candidate Juror's Judicial Philosphy should only be a part of what is considered. The equally or more important part are impartiality, temperament, and legal scholarship. His/her philosophy my be that free trade is important, but if Congress imposes a tariff, the judge must look to the law and not to his "philosophy". The same rules should apply even in the case of same sex marriage and abortion if the law is on the books.
If the law protects the right to build a church, the judge cannot reject the application because he is an atheist,

Charles Powell said...

I predict the WSJ will change its tune right after Obama announces his first judicial nominations.

Odd, isn't it, how those who so loudly decry "judicial activism" (such as President Bush did recently) never seem to notice that some conservative judges are some of the biggest judicial activists.

Scalia and Thomas, for instance, would dismantle decades of Supreme Court decisions affirming the principle of church-state separation. If that isn't judicial activism, what is?