What is “advice and consent”?
A lot of squawk the last few days, on this blog and the venerable axisofright.blogspot.com, over what the Senate’s job is during the judicial confirmation process. As always, the answer, and the explanation, can always be found at The Baseball Crank. If you are a fan of baseball and interested in politics (with a dash of pop culture), you absolutely must read the Crank.
Below is a thumbnail sketch of the different philosophies that a senator could employ in choosing how to examine a judicial nominee, as supplied by the Baseball Crank. If you want the real thing, click here.
Deference to the President – This test is basically a minimum qualifications test, similar that you would find in the hiring practices of any Denny’s. The only difference is that instead of a GED and US citizenship, the nominee also has to have J.D.
Judicial Philosophy – This model calls for the Senate to examine whether or not a nominee has reasonable process for deciding issues called before her. This one seems the most wishy-washy of the bunch for me. It would seem to me that HOW a candidate would come down on some issues would tend to matter. Additionally, I don’t think that we need to be giving lawyers bonus points for rationalizing whatever crazy positions they come up with (see Same-Sex Marriage and the Mass. Supreme Court).
The President’s Promises – This one is preferred by the Crank. It states that, as long as the president has nominated someone consistent with the flag he campaigned under, the Senate should confirm.
The Senator’s Choice – This model allows each senator to vote however she wants. Much like Burger King, they can have it their way.
Consensus – The “Everyone Must Get Along and Play Nice” model. This model has the benefit of assuring that NO ONE would ever get appointed to any court. Personally, I don’t think that this one sounds all that bad...from a “I never liked the Court that much anyway” perspective.
Litmus Test – I actually like this framework the best. There are some issues that are deal-breakers in my mind. I would absolutely never vote for a pro-choice judicial nominee, for example. I suspect that many other pro-lifers advocating other models are secretly on-board with this philosophy. My support of this model also probably illustrates why I’d never make a very good judge (or senator, for that matter). NOTE: I understand that the flip side of this coin would allow the other guys to choose what their “litmus” issue is and I’m fine with that. All I ask is that there is less “hiding the ball.”
Status Quo – Bar none, the absolute worst philosophy. If applied throughout American history, we’d still have segregation. As it is, the federal courts are the least-democratic institution that we’ve got. This model would make it worse.
posted by Iconoclast @ 10:19 AM
2 comments
2 Comments:
Thanks for sharing, El Canyone.
All that I was attempting to capture in the original post was how I would base my vote and why.
As a catholic and someone who is generally on-board with keeping people alive, I couldn't envision a world where I would vote for a nominee who wouldn't, at the very least, consider giving Roe another look.
Generally speaking, I could never fault a senator for a conscience vote on an issue. I might not vote for the guy/gal, but I would respect the position. For me, the real bad guys in the process are those who voted yay-nay to save their own skin.
Like I said, there is a reason why I'd make a shitty senator.
I think Judicial Philosophy is a legitimate method of inqury. A judge affirms upon the oath of office that he/she will preserve and protect the Constitution of the United States. If a person's judicial philosphy falls in line with the oath that they take, then they should be given deference. One could even argue that if a judge subscribed to a judicial philosophy which was contrary to the oath of office (e.g. an activist one), this would constitute a lack of character. I don't think the litmus test is the right approach, I think looking at if someone will uphold the purpose of the office and the oath of office is a legitimate form of inquiry. The case over the last 75 years has only looked at Character and qualifications -- which may explain why we're in as much of a judicial mess as we are in.
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