Dispatches from the Creation Wars

Christopher Eisgruber, a provost at Princeton University, has a brief post at Politico about some conservatives who argued for legislative deference for Supreme Court nominees now maintaining that consistent position with Obama in the White House and saying that Senate Republicans should vote in favor of Sotomayor and other Obama nominees:

Kudos to conservative lawyers Doug Kmiec, Ted Olson, and Ken Starr for sticking to their principles about executive branch nominations. When the Republicans held the White House, Kmiec, Olson, and Starr argued that Democratic senators had a duty to defer to the president when he nominated judges and executive branch lawyers. Now, with a Democrat in the White House, they have held to that position.

Kmiec, who ran the Office of Legal Counsel to the President under Ronald Reagan, wrote a letter calling upon senators to confirm President Obama’s embattled nominee to head the OLC, Dawn Johnsen. Olson and Starr came to the defense of Harold Koh, the former Dean of the Yale Law School whom Obama has nominated as legal adviser to the State Department.

He continues:

I do not mean to suggest that senators should always defer to presidential nominations. Indeed, in my book The Next Justice: Repairing the Supreme Court Appointments Process I contend that senators have not only the right but the responsibility to scrutinize the ideology, as well as the professional credentials, of Supreme Court nominees. Supreme Court justices often serve for decades, and they deal with a steady diet of momentous, and politically controversial, issues.

But nominations to the lower courts and executive branch positions are another matter. Lower courts rarely see the politically charged, unresolved issues that dominate the Supreme Court’s docket. And if you don’t like an executive branch official, the solution is to vote for the other party in the next presidential election – not to filibuster his or her nomination. The trend toward nastier confirmation battles over nominations to such office does the country real harm: it prevents presidents from forming an effective government, and it discourages good people from serving in public office.

With their non-partisan leadership on this issue, Kmiec, Olson, and Starr have shown us a path out of the wilderness. I and other liberals should remember their example – and follow it – the next time a Republican is in the White House.

I think this is generally true. In my adult life, the only Supreme Court nominee I would have voted against is Robert Bork. His views are simply too radical, particularly when it comes to free speech, for me to stomach and I think he was rightly rejected for the court. Beyond such extreme cases, I think some degree of deference is a good thing.

The degree of deference would vary depending on what position the person is being nominated for. If it is an internal administration position, I would show almost complete deference, only voting down someone in the most extreme of circumstances. For a Supreme Court nominee, I would show less deference but still a good deal of it. Those are the consequences of elections.