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None of It Matters — This Time Around

Deference to Supreme Court nominees is very big over at the Washington Post. The latest to trot it out is Ruth Marcus, who writes:

As [Sen. Lindsay] Graham told Sotomayor, “I can assure you that if I applied Sen. Obama’s standard to your nomination, I wouldn’t vote for you, because the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for someone with your activism and background when it comes to lawyering and judging.”

The judicial confirmation wars are like conflict in the Middle East, with a never-ending cycle of attacks and recriminations over grievances past. Sotomayor ought to be confirmed by an overwhelming vote, and perhaps Graham’s colleagues will heed his counsel that “elections matter.”

Judging from the tone so far, the more likely outcome is a near party-line vote. In that case, the president won’t have only himself to blame — but he will have himself to blame in part.

Well actually, he might blame Marcus and other pundits who argued against deference to Bush’s nominees. In 2005, Marcus wrote that Republicans were misguided in demanding because they voted en masse to confirm Ruth Bader Ginsburg, that “Democrats now owe President Bush the same deference when weighing his choice of Samuel Alito.” Oh no, Marcus then argued. Ginsburg was the model of moderation but not Alito. She demanded to know: “Is his judicial philosophy within the ideological goalposts? Do those goalposts shift depending on the balance of the court, or the ideology of the departing justice?” In essence, Marcus and other liberal pundits have always required a de novo review (literally “a new trial”) for Supreme Court nominees.

Moreover, it is odd indeed to see liberals throwing such a fuss over the focus on Sotomayor’s writings and speeches and her advocacy for PRLDEF. Didn’t Ted Kennedy and Joe Biden spend hours grilling Sam Alito about his membership in a Princeton club, decades before his nomination? Didn’t we dwell endlessly on John Roberts’s involvement in the Federalist Society?

All of this new found devotion to considering only a nominee’s judicial decisions not only smacks of hypocrisy, but it overlooks a key consideration for elevating judges to a higher court: whether they have comported themselves in accordance with the cannons of judicial ethics.

Canon 2 provides: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” At all times. The accompanying commentary explains:

An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.

This seems particularly relevant to Sotomayor’s track record of speeches, given that she conceded to Sens. Kyl and Graham that her “wise Latina” words may have been interpreted as evidencing bias. (To Kyl: “The words I chose, taking the rhetorical flourish, it was a bad idea. I do understand that there are some who have read this differently, and I understand why they might have concern.” To Graham: “I do understand how those words could be taken that way, particularly if read in isolation.”) Senators might then consider whether she, in trying to “inspire” students, was showing due consideration to avoiding the appearance of bias and the impression that she believes one gender or ethnic group possesses superior intellectual powers.

So when pundits and senators grouse that we are now taking the time to go through Sotomayor’s own words and probe her meaning and judicial philosophy, they are in essence telling us that none of this matters. It is a new day. Philosophy, judicial temperament, club membership, and fidelity to the canons of ethics? Pish posh. Get over it. Obama won – didn’t you hear?


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