Whenever there is a Supreme Court nominee, many people come out and say that the judgment should be based on qualifications of the nominee, not ideology or “politics.”
A sampling from the comments:
DaGoat: “Partisan opposition to appointees on political grounds under the cover of “advise and consent” was wrong when the Democrats did it, and it’s still wrong. ”
AustinRoth: “I do not care for her judicial philosophies, but she is an eminently qualified jurist, and should be confirmed quickly without rancor.”
CStanley: “The best way for the GOP to avoid the trap is to agree to confirm her, but not to agree with her judicial philosophy. They shouldn’t block the nomination but they should make it clear that the reason for not doing so is the same as they argued when the Dems succeeded in voting down Bork and almost succeeded in voting down Thomas- the fact that the confirmation process isn’t meant to be based on agreement of ideology.
At the same time, it’s perfectly legitimate to voice disagreements with her judicial philosophy and for activist groups to use this pick as a rallying cry to take back the WH before the Democrats are able to tip the court’s balance toward liberal activism.”
Quite frankly I don’t understand this at all. I’m no lawyer or legal student, so maybe one of them can weigh in, but I fall strongly in the camp that believes that there is no such thing as having Objective rulings of laws in the way that a scientist should be able to make Objective determinations of fact (even in most science that’s impossible because experimental design is based on the hypothesis, so bias of interpretation creeps in. I can’t count the number of times that I’ve seen a scientist get up and say that their experiment explains something and then the next one has a differing hypothesis and says the data supports theirs too — even though they are fundamentally incompatible based on how they were constructed. Both people are right most of the time, it’s not that they are doing bad science, it’s that their hypothesis can’t encapsulate reality completely.)
Rulings, even correct “non-activist” rulings will always be a product of their time and place. A good judge in one era may be a weak judge in another. In fact, as much as we hate to admit it, that’s the way our legal system is constructed. Congress writes laws vaguely, the Executive decides how to implement them and has large leeway, and the Judiciary not only rules based on the letter, but as a balance to ensure that the execution of the laws is carried out in its “intent” as related to the current circumstances. I find it funny how a lot of conservatives act like Originalism is the way to go, but overlooked when Justice Roberts has repeatedly said that the courts should pay attention to how their rulings will affect society as a whole and not shake things up too much regardless of textual interpretation.
I strongly opposed Alito’s confirmation because he was one of the people that helped construct the Unitary Executive theory and had consistently shown he would uphold that in his rulings. In a time with a very weak Congress and a long term nebulous threat, I felt that this was a very dangerous interpretation of the law. Is it a sound legal philosophy? I’ve read several legal experts that believe it is, while strongly disagreeing with it and its products. In effect they say the theory is dangerous and can easily lead to a non-constitutional concentration of power in the Executive that will be very hard to eliminate, but there is nothing on its face that makes it invalid. The end product of the theory is based on the political environment in which it is exercised, and the balance between Congress and The Executive is in constant flux. A weak Congress like we have now can easily give up too much power to the Executive and the courts will be the only check, while the theory originally arose at a nadir of Presidential power that even many of these liberal leaning scholars felt was too much. Similarly a radical Congress may need to be slowed down, while a reactionary one may not provide redress for minorities.
For me “partisan” as a negative means “opposing/supporting something because it’s done by your side, and you’d hypocritically switch positions if the sides were reversed.” A lot of Democrats are acting partisan about detainees because Obama has said that he’ll probably hold some without trial — something that was decried when Bush did it but now is considered “measured.” Regardless of whether you think it’s the right policy, at least I hyperventilated equally. For me “politics” means making tactical moves simply to hurt the other political party, without regard to long term effect. If a party is trying to destroy a nominee to make the President look bad — or presents their case in a way to make gross generalizations that fit more into a unified attack than anything about the nominee — then that’s “politics.” My concern about Alito had nothing to do with wanting to stick it to the GOP.
But “ideology?” Part of justice is wisdom, and a large part of wisdom is recognizing the inexorable flow of history. It’s so hard to judge who will be a good pick when they could be on the court for decades, but I think that being able to balance all the inherent contradictions in our Country and Law is extremely necessary. And someone’s ideology is a reflection of how well they will do that. It is also the basis for empathy, the word derided so much in this conversation.