Wednesday, August 03, 2005

Supreme Court: What's The Difference Between The Ginsburg and Roberts Supreme Court Nominations?

Gloria Borger of U.S. News and World Report argues that there is not much difference at all:

Here's the question: What's the difference between the nomination of Ruth Bader Ginsburg by President Bill Clinton and the nomination of Judge Roberts by President Bush? Answer: nothing. Ginsburg appeared as liberal as Roberts does conservative, yet she was approved 96 to 3. The GOP decided it would not be a party of useless litmus tests or panderers to special interests. And in the next election, Republicans made it clear she would not have been their choice. That is, after all, what elections are about.

I will admit that for some time I have been skeptical of arguments like Borger's. It seemed to me that Ginsburg and Roberts are not really similar nominations, because Ginsburg was simply replacing another liberal justice and was not expected to change the balance of the Court. Hence the light Republican opposition. The confirmation of Roberts, on the other hand, would result in replacing a swing voter with a reliably conservative one. So, I thought, it isn't fair to compare the Republicans allowing a 96-3 vote on Ginsburg with the caterwauling of today's Democrats.

It turns out I was wrong. Rather than being different, the two nominations are more alike than I had thought-- and I haven't seen any analysts note this yet. There is an important similarity between Ginsburg and Roberts: Both nominations change the ideological balance of the Court. Ginsburg was replacing a more centrist justice, Byron White. Justice White was no conservative, but whatever he was, he was not an ACLU left-liberal like Ginsburg. Her elevation to the Court thus changed changed the Court's ideological makeup, moving it leftward. And yet she was approved 96-3.

Roberts' nomination is a mirror image of Ginsburg's: He will replace a more centrist justice, Sandra Day O'Connor. O'Connor is no liberal, but she is not a solid, reliable conservative like Roberts; so his appointment thus also changes the balance of views on the Court, moving it rightward.

The real difference? Instead of accepting the President's right, in our system, to appoint justices whose philosophy does move the Court either rightward or leftward (as Clinton did with Ginsburg and Bush seeks to do with Roberts), the Democrats are using every possible strategy to stop the Roberts nomination.

It is entirely appropriate for President Bush to nominate someone whose judicial philosophy and views will change the direction of the Court; that's why we have elections, and that's how the Founders set up the system. The Democrats' reaction is all the more disgusting when compared with the Republican approach in nearly identical circumstances.

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