Some good stuff out there regarding the nomination of Michael McConnell to the Tenth Circuit bench by Matthew Yglesias, Sam Heldman, Jeff Cooper (here and here), and Nathan Newman. It is funny, in a pathetic sort of way, given what happened during the Clinton administration, that any Republican would complain about politics and ideology being part of the confirmation process.
Of course, they decry it on the one hand while campaigning on it on the other. As I pointed out in June, John Cornyn made his support for Priscilla Owen a part of his platform from the beginning. If it’s okay for John Cornyn to say “Vote for me and I’ll help people like Priscilla Owen become federal judges”, then it’s okay for Pat Leahy to say “The people who voted for me did so in part because I’ll work to prevent people like Priscilla Owen from becoming federal judges”.
I believe it was Chuck Schumer who argued awhile back that political and ideological concerns should be an open part of the confirmation process. I agree with this. I’d rather see senators ask pointed questions about case law than look for bogus scandals like video rental tendencies and pot smoking in law school as a fig leaf for opposing a nominee on ideological grounds. Bloggers often write about how they wish Old Media would admit its biases up front rather than strive for some kind of phony objectivity. The same thing applies here.
Sam and Nathan get into an interesting discussion in the comments on Nathan’s post, which Jeff also notes, regarding the strategy of opposing a nominee like McConnell, who is known as an excellent legal mind and who has the support of some prominent liberals like Cass Sunstein. I tend towards Sam and Jeff’s viewpoint here, that you have to pick your battles carefully so as not to be out of ammunition when a really bad nominee comes up for a hearing. Based on what I’ve read so far, I’m reasonably comfortable that McConnell would give issues a fair and impartial hearing, a sentiment which I emphatically did not have for Priscilla Owen. As such, I’ll support his nomination and will save my strength for the next Owen or Pickering.
Democrats started it!!!
More seriously, I had real problems with the way Republicans conducted themselves during the Clinton Administration when it came to appointments. I don’t mind ideology being a factor for appointments. I do believe that appointments should handled expeditiously, up or down. I also believe that they should not be killable in committee.
I believed that when Clinton was president, too. Many of my fellow GOPers scoffed. I warned’em. Maybe they were right, though. The GOP unilaterally disarming may not convince the Democrats to act any more fairly (or vice-versa), so what’re you gonna do?
Whitlock
The fine gents at writ.findlaw.com (especially John Dean and the Amar brothers) have written pretty extensively on the political nature of the confirmation process.