The editors of The New Republic have taken what I see as a strange position on the nomination of Samuel Alito to the Supreme Court. In Restraining Order, they have suggested that Democrats vote against confirmation, but advised against attempting to filibuster the nomination.
Although the decision is not easy, our concerns about Alito’s lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination. We recognize that this strategy has risks: If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now. Still, we urge Democrats to resist the call of liberal interest groups for a symbolic and self-defeating filibuster, which would prompt Republicans to retaliate by eliminating the filibuster with the so-called nuclear option, ensuring Alito’s confirmation while permanently marginalizing Senate Democrats. If the Senate vote takes place more or less along party lines, Alito will be confirmed but Democrats will at least have taken a stand for bipartisan judicial restraint.
I agree that the filibuster option is self-defeating. The editors advocated the confirmations of Ruth Bader Ginsburg and Stephen Breyer, saying:
During the Clinton era, we enthusiastically championed the candidacies of Ruth Bader Ginsburg and Stephen Breyer, predicting that they would serve as liberal models of restraint. On the Court, Justices Ginsburg and Breyer have surpassed our hopes, voting to strike down fewer state and federal laws than any other justices.
Of course, other than the Chief Justice, who has been on the Court for less than a full term, Justices Ginsburg and Breyer have had fewer opportunities to do so, having been on the Court the shortest amount of time.
The Republicans could have been obstructionist when it came to the nominations of those two justices. Mrs. Ginsburg, in particular, despite efforts to paint her as a “moderate,” was clearly known to be on the left; she had been counsel for the ACLU! Yet Republicans did not try in any serious way to obstruct either nomination, and both justices received the votes of a majority of the Republicans in the Senate at the time.
The editors of The New Republic have, in effect, advocated that the Democrats further politicize these nominations. They have advocated a policy that cannot stop Mr. Alito’s confirmation, but guaranteed that future nominations by Democratic presidents will be opposed by Republicans on purely philosophical grounds. They stated, as quoted above, that they believe the confirmation process has been so polarized that the GOP will oppose such nominees regardless of what Democrats do now. Maybe, maybe not. But the policiy advocated by the editors pretty much guarantee that there will be no more Ginsburg confirmations, where only three negative votes were cast.
I guess that they think they can polarize the process, and then blame the Republicans for doing it.