Thursday, October 13, 2005

Is It Appropriate For Republicans To Oppose A Republican President's Nominees Based On Their Judicial Philosophy?

It is an interesting question to ask whether Republicans have a fair complaint if the President nominates someone known to have a contrary judicial philosophy to what the President and his party have advocated. Certainly, on the surface it appears inconsistent to complain about Democrats blocking judges based on philosophy not qualifications and then to block a Republican nominee based on philosophy not qualifications.

(Of course, the question could be posed with the parties changed – would Democrats have a legitimate complaint if a Democratic president nominated a known conservative? Push this toward the logical ends – what if Bill Clinton had passed over Ruth Bader Ginsberg to nominate Edith Jones; what if George W. Bush had nominated Larry Tribe for Chief Justice?)

The argument that elections matter might justify the members of the President’s party (whichever party) in opposing a nominee that clearly violates the terms of their party’s commitments to the electorate, even if philosophical opposition from the other party is illegitimate. The President is the leader of his party, and the members of that party have a role to play in keeping the President faithful to the party and its promises.

That having been said, the issue is purely hypothetical in the case of Harriet Miers.

The philosophy question should not arise until the qualifications issue is settled, and for Miers it is settled – against her. Engaging in the on-going debate about her philosophy assumes that her philosophy matters. But if she is manifestly unqualified (and I have argued earlier that she is), her philosophy is irrelevant. The prerogative of a Senator from the President’s party to vote against a nominee on philosophical grounds presupposes that the nominee is qualified; no Senator from any party should vote to confirm an unqualified Justice.


  • At 12:17 PM, Blogger Tom P said…

    I have never agreed that withholding consent on the basis of judicial philosophy is illegitimate. Beyond simple competence, it's the only qualification that matters.

  • At 1:20 PM, Blogger stealthlawprof said…

    Tom -- Does that not lead to a complete impasse in judicial appointments? If the GOP opposed Democratic appointments on philosophy and the Democrats opposed GOP nominees on philosophy, no one would ever get past a filibuster.

  • At 3:59 PM, Blogger SamuelAlito said…

    Miers is old hat. I hope you'll start posting about me soon.


  • At 11:51 AM, Blogger stealthlawprof said…

    I've been away for a while and missed your post, Sam, err .... Mr. Justice Alito. I do intend to post about you. Let me start with my congratulations on your well-deserved confirmation.


Post a Comment

<< Home