Avoiding a Supreme Court nominee’s ‘legal thinking on any issue’

We’re barely a few days into the political debate over the future of the Supreme Court. Bush probably won’t announce his nominee until next week, at the earliest. And yet, the fight has already turned in at least one very odd direction.

While some focused on whom Bush’s choice will be, others mapped out strategy for the period after he decides. Senate Republicans made plans to begin hearings as quickly as possible after the nomination, focused not on the candidate’s positions on hot-button issues but on legal credentials.

A Republican planning document provided to The Washington Post described the need to avoid disclosing the nominee’s “personal political views or legal thinking on any issue.”

That’s not a typo. GOP talking points insist that once a nominee appears before the Senate, lawmakers not even talk about the would-be justice’s approach to the law on given issues.

It’s one thing to suggest, as the Republican planning memo does, that the nominee avoid discussing her or her political views. This is the first Supreme Court vacancy in 11 years, and this judge will replace the key swing vote on the high court, so it’s likely his or her political views will come up anyway, but let’s not dwell on this. The bigger problem is what, exactly, the confirmation hearings will focus on if the nominee avoids discussing “legal thinking on any issue.”

In other words, the nominee, as far as Republicans are concerned, should not only steer clear of questions regarding their personal views on, say, abortion, but her or she should also not publicly discuss thoughts on the legal approach to privacy issues.

If the Senate actually pursues this course, we’ll likely see some very brief confirmation hearings. Indeed, as Sen. Chuck Schumer (D-N.Y.) put it, Republicans expect the Senate to tell the nominee, “OK, tell us where you went to law school and what your career was; and have you ever broken the law? You’re on the Supreme Court.”

This, obviously, won’t do. Fortunately, we have the Specter Standard to fall back on.

Over the weekend, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) was on Meet the Press to discuss the pending vacancy, and was confronted with a quote from the book he wrote just a few years ago. Specter wrote:

[T]he Senate should resist, if not refuse to confirm Supreme Court nominees who refuse to answer questions on fundamental issues. In voting on whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate’s philosophy, but should be able to judge on the basis of the candidate’s expressed views.

When asked if he stood behind his own words, Specter said the statement “is true, just like all the rest of the book.”

It’s exactly the point Dems need to rely on in the coming months. Republicans plainly believe that this nominee shouldn’t have to deal with substantive legal or issue-related questions at all, but the Specter Standard shows us the way around such nonsense. Indeed, as far as the Republican chairman of the Senate Judiciary Committee is concerned, the Senate should “refuse to confirm Supreme Court nominees who refuse to answer questions on fundamental issues.”

Simple and straightforward, isn’t it? It’s a point worth remembering as the process unfolds.

The bigger problem is what, exactly, the confirmation hearings will focus on if the nominee avoids discussing “legal thinking on any issue.”

Hairdos?

  • Though I’d love to contribute something substantive here, can I just register how much I loathe these people? Sometimes I just have to say it, though I say it considerably less often than I feel it.

  • He who has the gold makes the rules. Or, to say it from a Republican viewpoint: “We’re right anyway. So following normal procedure here would only help those traitorous liberals muck up the works and prevent the rapture from a’coming. Procedure is only to protect right-thinking ‘murkuns from the liberals.”

    Sigh.

  • It’s nonsensical to assert that the Senate in its advise and consent role can’t ask about judicial philosophy. You’d better believe that all the candidates are being grilled in excruciating detail on their legal thinking in the unrecorded confines of the White House.

  • I have to give major credit to the reporter who grilled Specter– Andrea Mitchell – NBC News. We need to support anyone in the press who can put these questions to the people who matter.

    Pinning Specter down like this will keep him from being the lynchpin in a united “don’t ask them anything” front that will be necessary to get a true extremist on the bench.

  • Wow I’m reading the transcript and Sen. Leahy is just bending over. Ted Kennedy came out swinging like he should—calling out the WH for nominating an extremist (which we all know will happen), and he gets stabbed in the back. Listen to what the ranking Dem on the Judiciary Committee thinks:

    SEN. LEAHY: I have a great deal of respect for Ted. He’s gone through more confirmation hearings on the Judiciary Committee than all of us, but I agree with Arlen. Let’s take it easy. I had a long talk with the president on Friday. He assured me then that he wants to consult as he has before. I think the meeting with Senator Specter, myself and the Republican and Democratic leader of the Senate in a week is a very, very good start. I would urge that the groups on both the right and the left calm down a little bit. Let’s see who the nominee is and trust the Judiciary Committee to do a good hearing. You know, the irony is if Sandra Day O’Connor was being nominated today, the left would start complaining that we can’t have her, she’s a conservative Republican. The right would complain, “We can’t have her. She’s too much of a moderate and a consensus builder,” and yet every one of us will agree she’s been a darn good justice.

    No, the irony is that you’re speaking like the WH has been presenting anything but an extremist front since day one. The irony is that you had a chance to say something meaningful and set the tone early, and instead you apologize.

    How about: “Well, Andrea, Ted’s speaking up for the American people, who may be getting tired of the White House giving so much lip service to working together while they are actually tearing this country apart. The president mislead us with his uniting rhetoric before, yet he hasn’t met with a single Democrat yet regarding his nominees. The Senate only held up 10 nominees out of almost 300 under this president—just 10—and this president’s response was to re-nominate 7 of them. Clearly, he hasn’t given us any reason to believe he will be civil or moderate.�

  • Right on, Eadie.

    If I were one prone to cursing, I just might do what Cheney did and tell Leahy to go f*** himself! 🙂

  • The right has tried to jump out in front of this thing, accusing the Dems of unfair tactics toward a nominee who so far doesn’t even exist. The more outspoken of the Dems (like Ted Kennedy and Chuck Schumer) see no reason to believe that Bush will suddenly step out of character, act opposite to his previous publically stated intentions, and nominate a human being.

    Leahy is trying to act like a Senator in the forgotten days when it was still possible to nominate someone to the Supreme Court who could garner legitimate support from both sides of the aisle. Leahy may or may not be engaging in some wishful thinking, but I’m not ready to second the motion of someone like Dick (GFY) Cheney. Hell, whether Leahy is right or not, I don’t see him voting yes on some Scalia clone.

  • This is an obvious effort to paint the Dems as obstructionists since the Republicans will say they can’t find anything wrong with the prospective Supreme Court candidate. If the Repubs are nice in the hearings and the Dems are combative, the Rovian theory would say that the Dems will look bad in the press. The Dems need to show that the true obstructionism will take place with Republicans stonewalling during the confirmation process and not allowing Congress to seriously pursue its role in the advice and consent process.

    But, it all comes down to the fact that the Bush White House isn’t about good governance, it’s about winning the partisan tactical games.

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