On The Confirmation Of Justices

Jonah Goldberg (with whom I agree about some things and not about others, as I do with pretty much everyone else on whatever we might very broadly call “the Right”) has posted some thoughtful remarks about the death of Antonin Scalia. You can read them here.

This in particular stood out:

The division of blame for the ugliness of these fights is not equal. Yes, there’s hypocrisy on all sides of the aisle as the tables spin around and around. But philosophically this is a world liberals created. They have invested in the courts’ having power the Framers never intended. Their doctrine of the living Constitution has given, in theory, an open-ended warrant for courts to do whatever they want. People lament the rush of money into politics, but that money is made necessary by a government that has evermore control over the economy and peoples’ lives. Similarly, when we turned justices into monarchs, we increased the incentives for people to care much more than they should. If Scalia’s interpretation of the Constitution held sway in the land, the Court and the government would have much less power over our lives. And that, more than anything else, explains why the Left hated him so much.

In his post Mr. Goldberg mentions Chuck Schumer’s July 2007 call (that is, 18 months before the next president would be due to take office) for the Senate to refuse to confirm any of George W. Bush’s remaining judicial nominees. Mr. Schumer had this to say (video here):

… I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not…

This is just a prologue considering the constitutional harm and dramatic departures that are in store if those few are joined by one more ideological ally. We have to, in my judgment, stick by the precepts that I’ve elaborated. I will do everything in my power to prevent one more ideological ally from joining Roberts and Alito on the court.

Here’s Barack Obama in 2006, as he prepared to join, for purely ideological reasons, a filibuster against the confirmation of Samuel Alito:

As we all know, there’s been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I’m deeply troubled. I have no doubt that Judge Alito has the training and qualifications necessary to serve. He’s an intelligent man and an accomplished jurist. And there’s no indication he’s not a man of great character. But when you look at his record – when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.

Remember, also, the vile campaign the Left waged against Robert Bork, one of the most extravagantly qualified SCOTUS nominees ever to sit for confirmation.

So please let’s not hear any more tendentious claptrap about constitutional “responsibilities” or “obligations” to consider lame-duck appointments at a time of ideological war. The old norms have fallen away completely now in America — as anyone who watched the passage of Obamacare ought to know — and all that’s left is the struggle for power, and a mortal contest between competing visions of the American nation, and of civilization itself.

Well fine, then. Bring it.


  1. Bill says

    I fear a sell-out by the Senate. They have shown little back-bone so far and people don’t change overnight. With Trump riding high, they fear giving him the power of an appointment, and if either Bernie or Hillary wins, they will have lost anyway.

    The other option is BHO appoints someone so obviously not SCOTUS material to make political hay. His appointment will be both minority and female and totally unqualified. Then when she is rejected, he and his cohorts will scream racism and chauvinism as always.

    I grieve for what our country has become.

    Posted February 15, 2016 at 7:01 pm | Permalink
  2. I fear a sell-out by the Senate.

    If I understand you correctly, Bill, you fear that the Senate will consent to one of 0bama’s nominated tools/fools (just like his so-called “Wise Latina”)? Because they would rather live with the loser they know than to risk a possibly worse loser from either Trump or Clinton or that other Leftist jerk? Seriously?

    If that is indeed what happens, please stop the world — I wanna get off.

    Posted February 15, 2016 at 8:34 pm | Permalink
  3. Malcolm says

    You’re right to fear a cave-in by McConnell, especially if Obama nominates someone plausibly “centrist” to pry the Republican factions apart.

    I’ve seen creatures with more backbone paddling about in the tide-pools of Cape Cod.

    Posted February 15, 2016 at 10:31 pm | Permalink
  4. Please say it isn’t so, Malcolm. What hath God wrought? If this is what He has in store for his Chosen People, then would He please Choose somebody else for a change?

    Posted February 15, 2016 at 11:23 pm | Permalink
  5. On the other hand, if by some great miracle 0bama nominates Thomas Sowell, then by all means let the spineless McConnell cave all in.

    I would truly love to have Sowell as one of the Supremes!

    Posted February 15, 2016 at 11:33 pm | Permalink
  6. I think this is a false dichotomy — I think that Scalia can be right that the constitution means what the founder’s intended and the interpretationists (as it were) can also be right that we sometimes have greater insight into that meaning than they did (or at least that we can be in disagreement with them about, as it were, the meaning of what they meant). This becomes clear once you’ve been exposed to a bit of Tyler Burge in the philosophy of language / mind. People can have imperfect understandings of the concepts they use which are only clarified with experience. Insofar as interpreting the constitution involves figuring out the application of moral concepts, it could very well be that the founders intended that some moral concept be applied in all situations without having a perfectly clear idea of all the situations that concept applies in — even while having a distorted idea of the situations in which that concept applies. That’s not to say that we necessarily understand its application better than they did, but different people can all claim to want to be true to the founders’ intentions (that such a concept apply) while honestly disagreeing about which situations in which the concept applies.

    Posted February 16, 2016 at 5:15 am | Permalink
  7. Whitewall says

    Jonah’s comments are spot on. Liberals are getting all worked up over consequences of their own actions. But in the Left’s world, there should be no consequences, so all those readily available remarks of Schumer and Obama etal which stand as monuments to hypocrisy are simply irrelevant now. The need for those two Senators then was justified and the need for the exact opposite now is justified. The need of the Liberal at any moment is justice. Anyone who points out their glaring contradiction is simply regarded as obstructionist and mean spirited to the need of the moment.

    Posted February 16, 2016 at 7:58 am | Permalink
  8. Whitewall says

    “..if Obama nominates someone plausibly “centrist” to pry the Republican factions apart.” A centrist being nothing more than a stealth liberal. Eisenhower, Nixon and Bush1 bought into that.

    Posted February 16, 2016 at 8:05 am | Permalink
  9. A centrist being nothing more than a stealth liberal.

    No doubt whatsoever, Robert.

    Posted February 16, 2016 at 12:43 pm | Permalink
  10. A “centrist” nominated by 0bama would be someone who is only slightly to the left of Noam Chomsky.

    Posted February 16, 2016 at 12:55 pm | Permalink
  11. pangur says

    The cucks will try to sell out to Obama as fast as they can on this nomination. Whether or not they do will be a function of whether any pressure can be brought to bear on them.

    Why any of you guys are worried about what the Dems think about this is beyond me. This is the GOPe’s to lose (and they’ll find a way).

    Posted February 16, 2016 at 5:04 pm | Permalink
  12. JK says


    Posted February 16, 2016 at 5:34 pm | Permalink
  13. Malcolm says


    You make an important point, but I think that to implement the approach you favor through the Court, which is an unelected panel of nine highly unrepresentative citizens, vests this interpretive power in the wrong branch of government.

    You write:

    …I think that Scalia can be right that the constitution means what the founder’s intended and the interpretationists (as it were) can also be right that we sometimes have greater insight into that meaning than they did…

    Who is this ‘we’? If the text of the Constitution is clear on some point of law, then the people have a means to amend it. If it is not, because times are always changing, then why not allow the fluid process of legislation continually to adapt the law to the people’s evolving understanding, instead of asking a panel of nine unaccountable lawyers (which often boils down to the opinion of a single one) to nail it down for all time?

    But I’m cribbing a bit here; as it happens the position you expressed is exactly the opinion of the majority in Obergefell v. Hodges, an opinion that I think was conclusively (perhaps I should say “magisterially”) refuted in the dissenting opinion of — who else? — the late Antonin Scalia.

    Read it here (scroll down to page 69).

    Posted February 16, 2016 at 9:11 pm | Permalink
  14. Malcolm,

    I don’t intend to get into a debate about marriage, but I might as well use it as an example. My argument may be excruciatingly simple, but bear with me. Say that the law we’ve agreed to allows for freedom of association. Now if a state denies certain people the right to marry, you get a question of whether marriage is a kind of association. You could of course appeal to the writers of the law and say, “Well that is (or isn’t) what they meant by association” — but why is what they meant relevant? There’s a concept of association which applies independently of how anyone believes that it applies, and when a judge considers whether a law has been respected, he considers the concept, not people’s beliefs about the concept. This is the point Burge makes about natural-kind concepts applied (admittedly with a bit of finesse) to, as it were, moral-kinds. That is, people in the past could have had a theory of what gold is that led them to apply the concept of gold to pyrite. Still, if they made a law banning the import of gold into the country, for some reason, we would not say that pyrite is banned because that’s what they understand by the word “gold”, at least so Burge would say. We would say that according to the law gold is banned and that on our correct understanding of what gold is, we now know that pyrite can be allowed into the country.

    This is perhaps what was kind of disingenuous on the conservative side about the statement that marriage had always been *defined* as between a man and a woman. I suppose you could have a social-constructionist view of what marriage is, in which case that’s OK. But you could also say that marriage is just what it is, and either it can exist between men or women or it can’t. The founders and all the state legislatures could have been wrong on that score because they misunderstood the nature of marriage. Likewise we can be wrong on that score. But to say that the founders didn’t believe marriage could exist between two men or women and so it doesn’t at least risks non-sequitur. Be that as it may, we should refer to the intentions of the founders when interpreting the law. When? When we’re uncertain what concepts the words they used express. So Scalia’s right but the interpretationists are right to.

    Granted, the marriage example is rather ridiculous, but it isn’t ridiculous when it comes to words of contested application like “freedom” etc. There we (and the founders) are in a difficulty about exactly how these concepts apply. If we weren’t, there would be no need for ethics!

    And I sympathize with your point that we should rely on the legislatures, but I don’t think a legislature can properly say what words ought to mean, at least in that way. Laws tell people what to do, I guess — but you can’t stipulate that the concept of freedom applies in such and such circumstances and not in others, anymore than you can stipulate that the concept of a circle applies in such and such circumstances and not in others.

    Posted February 16, 2016 at 11:10 pm | Permalink
  15. One interesting question that’s come out of the somewhat tiresome debates about whether Obama should appoint a judge, for me, is whether the constitution requires him to or merely gives him the right to do so when it says the President “shall appoint”. It would be hilarious, I think, if Obama, somehow in a conciliatory mood, acquiesced to Republican demands only to face impeachment for shirking his constitutional duties!

    Posted February 16, 2016 at 11:21 pm | Permalink
  16. If 0bama’s shirking his Constitutional duties was a viable basis for his impeachment, he would have been impeached several years ago.

    Posted February 17, 2016 at 2:42 am | Permalink
  17. JK says

    Here’s one example of why losing Scalia is such a loss:


    Posted February 18, 2016 at 11:50 am | Permalink

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