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Edited on Wed Oct-24-07 02:25 PM by Hippo_Tron
I should have written this over a year ago during the Alito confirmation but it came back to my head today with the failed filibuster of Bush's most recent appeals court nominee.
During the debates over the "nuclear option" and the subsequent Roberts and Alito confirmations there was discussion of how the only filibuster of a nominee to the SCOTUS was Abe Fortas in 1968. There were ethical reasons behind this filibuster but some argue that the filibuster was really about whether or not he was too liberal. The problem with this argument is that it misses the big picture.
Democrats need to stop pretending that it's 1968 and realize that it's 2007. The days where all well qualified judges get confirmed regardless of ideology have long since passed. Since the Nixon Administration the right wing has been working to do everything in their power to spread their ideology onto the court. This has progressively intensified with Roe v Wade, the rise of the religious right, Reagan's election, the election of the Republican Congress in '94, and of course appointment of George W Bush to the presidency.
Now you may hear the argument, "But wait, the Republicans let Clinton confirm Ginsburg and Breyer." Yes they did, but Clinton had to compromise to even get to that point. For one, Ginsburg and Breyer aren't as liberal as Marshall, Brennan, or Blackburn were. Secondly, while Ginsburg is more liberal than the moderate Byron White that she replaced, she was 60 when she was confirmed. Had she been 50, the GOP would not have allowed it. I should note that the Republicans were in the minority when both of these justices were confirmed. Breyer is arguably not as liberal as his predecessor, Justice Blackburn.
With the death of William Rehnquist, a conservative, and the retirement of Sandra Day O'Connor, a moderate (by today's standards anyway), Bush was in much the same situation as Clinton was in terms of appointing new justices. But because the Democrats were somehow under the illusion that we still live in the days where the Senate always confirms well qualified people, Bush got exactly what he wanted without any compromise: Two young right wing justices. He replaced the conservative Rehnquist with the even more conservative Roberts and the moderate O'Connor with the right wing idealouge Alito. Roberts was 50 when he was confirmed and Alito was 55.
I'm not saying that Democrats could have forced Bush to appoint someone who wasn't conservative. But they certainly could have forced Bush to nominate justices who are less ideological than Alito and Roberts. Instead they argued that "If we filibuster their nominees based on ideology they will do it to ours when we control the White House."
What they don't seem to understand is that the Republicans will do this anyway. Maybe we would be better off if we did return to the days where we confirmed justices based on qualifications alone. But extending a hand of bipartisanship to Republicans isn't going to make that happen. Even if some Republican senators seem like they would like to return to this system, it will never happen. The religious right simply has too much sway in the Republican Party. Even if some senators want to confirm liberal justices in the spirit of bipartisanship, religious right will squeeze them by the balls until they cave to their will.
The fact is that the right wing has decided to use any means necessary to spread their ideology onto the Supreme Court and lower courts. As much as Democrats may not like it, the only option available to stop them from doing this is to counter with any means necessary. Trying to reason with unreasonable people simply does not work.
*Edited for grammatical errors
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