Strengthening Constitutional Self-Government

No Left Turns

SCOTUS yet again

Ken Masugi notes that this article reports that "the two sides have consulted the Constitution and reread the pertinent Federalist Papers, and both are looking at the record of other presidents for evidence to support their interpretation of what the consultation requires." Good, though as Ken also notes, no one seems to be doing any really deep thinking.

A number of observers have also remembered that President Clinton, who in 1992 won a significantly smaller percentage of the popular vote than did President Bush (certainly a constitutionally irrelevant consideation), did not feel compelled to maintain the balance on the Court when he appointed the "extremist" Ruth Bader Ginsburg to replace Byron White. This despite the fact that, at the time (another constitutionally irrelevant consideration) Democrats controlled the Presidency and both houses of Congress, which, some are now saying, means that we should hesitate before letting yet another branch fall to this partisan hegemony. Indeed, I think that the Democrats ought to follow the Republican practice during the Clinton Administration and essentially let the President appoint any distinguished legal thinker (an appelation I’ll concede to Ginsburg) he wishes.

My final observation is that the willingness of the Democrats to put forward the names of Hispanic judges seems to be an attempt to weaken the President politically, should he not now choose to go in this direction. One wishes in vain that everyone, especially on the Republican side, would simply stop discussing the "politics" (especially the constituency-based politics) of the nomination. For good political advice regarding how the Republicans should approach this process, go here. Hat tip: Michael DeBow at Southern Appeal.

Discussions - 1 Comment


Any "consultation of the Federalist Papers" by Leahy, Reid, and company will be geared to Democratic spin.
They want to say that 1) the Framers regarded senators as platonic guardians who would play the leading role in judicial nominations; and 2) that the Framers intended the Senate’s handpicked justices to interpret the Constitution to fit with predominant Establishment opinion via "emanations and penumbras."

The fact that the anti-constitutionalists are consulting the Federalist Papers is about as significant as the fact that Stalinist East Germany was called the "German Democratic Republic."

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