Revisionism About Clinton’s Supreme Court Appointments

Writing with respect to Ed Gillespie’s preemptive defense of Republican hypocrisy over judicial appointments, Johnathan Adler comments:

I understand this view, even as I lament it. I continue to believe the Senate should maintain a more deferential approach — much like Senate Republicans adopted toward Ruth Bader Ginsburg and Stephen Breyer. I also fear there may be no going back. If Senate Republicans follow Gillespie’s advice — and Gillespie is hardly the only one urging this course — I hope they will also promise to restore the status quo ante if Senate Democrats will commit to follow suit.

I trust that many have you have already spotted the fallacy in Adler’s comparison, which derives from the irredeemably flawed premise of an ideological equivalency between the Court’s “liberals” and “conservatives.” The Ginsburg and Breyer appointments were smooth for the obvious reason that both were pre-approved by Orrin Hatch. Ginsburg had a very moderate record as a circuit court judge, and the Chamber of Commerce-approved Breyer has cast more conservative votes than two of the Court’s Republican appointees. (Alito, on the other hand, is about as doctrinaire a conservative as you can be.) Hatch made it clear that had Clinton tried to nominate the liberal equivalent of Alito or Roberts, there would have been a major fight. And, of course, had Bush nominated the conservative equivalent of Breyer — another Kennedy, roughly — he or she would have sailed through the Senate. It’s not that Republicans didn’t consider ideology in dealing with Clinton’s appointments; it’s that Clinton conceded in advance.

Lest I be accused of my own hypocrisy, I should say that my own positions haven’t changed; I still 1)couldn’t care less if a substantial number of Senate Republicans vote against Obama’s nominee, and 2)think the position that the President can consider ideology in choosing a nominee but the Senate can’t consider it when evaluating a nominee is indefensible on the merits. But to draw an equivalence between the Breyer and Alito nominations is frankly absurd.