Nan Aron opposes confirmation of President Bush's nomination of Leslie Southwick to the U.S. Court of Appeals for the 5th Circuit. Why? Not because he's unqualified, but because he's not a left-liberal. Even more explicitly, blogger publius writes:
What annoyed me was the Post’s rationale – i.e., that Southwick should be confirmed because he is qualified. It’s an argument you hear a lot in judicial nomination battles, so it’s important to understand why it’s almost always irrelevant.
In all judicial nomination debates, it’s important to distinguish between a judge’s qualifications and a judge’s political preferences (as evidenced by past actions). ... Nominations should be about politics. That’s what the debate-averse wankers at the Post don’t understand. Nominations should be about politics because judging is inherently and necessarily political. You simply can’t avoid it, so we should stop trying to.
Of course, judging shouldn't be political and need not be political. But here we face the old ought/is dichotomy. Regrettably, at this stage of our history, judging is political. The law is whatever 5 unelected old men and women say it is. Certainly, the law is not what the people or their elected representatives say the law is. Because the Founders did not recognize the potential dangers the judiciary posed to democracy, they left us with almost no checks and balances on the courts. Indeed, the only meaningful check is the nomination and confirmation process. You wait for the Brennans and Blackmuns to check out and then replace them with somebody with a more attractive take on the law. Hence, the nomination process is political.
As I wrote a while back:
One of my (many) objections to Harriet Miers' nomination to the Supreme Court was my belief that Bush was ducking a fight with the Democrats that the time had come to wage:
... we'll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, "confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing," so that that "vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to." Indeed.
This is a fight we can afford. It's the right fight. Those of us who oppose Miers need to keep on fighting.
What the GOP has to make sure that what goes around comes around. We've got to hold the feet of the Arons and publiuses of the world to the fire. When there's a Democrat president in the White House and a Democrat majority in the Senate, the GOP has to be prepared to use every political tool at its disposal to keep left-liberals off the bench, just as the Arons and publiuses want to keep conservatives off the bench. Thanks in part to people like me, of course, we still have the judicial nomination filibuster to do just that.
Now, some likely will complain that further politicizing the judicial confirmation process is likely to (a) result in judicial vacancies going unfilled and (b) tie the Senate up in knots that prevent it from getting anything else done. The small l libertarian in me almost welcomes the prospect of empty courts and preoccupied Senators. After all, if they can't get any work done, they can't do any harm.
OTOH, there's always Frank Caliendo's solution to nomination fights:
