In my quasi-defense of the judicial confirmation process yesterday, I noted a frequent argument that I've always found especially puzzling:
A particularly strange variant of this argument fetishizes the number of "no" votes justices receive, as if it's unacceptably "political" for Senators to disagree with the views of a formally qualified nominee. Many Republican politicians and pundits seem outraged about the number of senators who deigned to vote against Alito and Roberts, and centrist critics like Wittes seem to find the opposition to Alito objectionable as well. What none of them can explain is why exactly it matters if a justice gets 35 no votes or five.
Via Bob Somerby, I see that the Washington Post op-ed page has a classic example of the non-argument:
We supported confirmation of Mr. Bush's well-qualified Supreme Court nominees and strongly urged Democrats to drop their unjustified filibuster of Mr. Estrada. We believe elections have consequences, and presidents are entitled to some deference in their appointment of judges, if those presidents show enough respect for the bench to name men and women of quality. Mr. Bush was owed better than then-Sen. Obama gave him; despite that record, Mr. Obama is owed deference now.
Absent here, as always, is any actual argument. Why should appointments to an independent third branch be treated with a deference like cabinet appointments? Why don't Senate elections count? Why is it appropriate for a president to consider ideology (as opposed to just formal qualifications) but not senators? Who cares if a nominee gets 30 "nay" votes rather than 10? I've never heard decent answers to any of these questions, and certainly the WaPo's latest iteration provides no help. Above all, it seems rooted in the traditional Broderite dismay that politics might actually involve conflict. At any rate, Obama was right to vote against Alito and Roberts and there's nothing wrong with Republican senators voting against Sotomayor if they disagree with her substantive views.
--Scott Lemieux
