Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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.
Politics
Comments
I guess Ms. Miers doesn't really count as a Supreme Court nominee to vote against, as she was withdrawn, not voted down.
Posted by: Parse | June 25, 2009 9:17 AM
I disagree heartily regarding Supreme Court nominations; no deference whatsoever is due the Executive. When every nomination is for life with no way to remedy a bad appointment (save in cases of blatant criminality), and the decisions of this Court has no higher level of appeal, every nominee must at least be palatable to 60 Senators. I think the confirmation process should be expedited to prevent opposition parties from trying to run out the clock on a Presidency, but I would have supported the vote-down of both of Bush's nominees, as well as numerous others. Bork was a no-brainer.
Posted by: Shygetz | June 25, 2009 9:55 AM
From the article:
" confirm President Obama's embattled nominee "
Is she really "embattled"? I know that in this polarized atmosphere any nominee is reflexively rejected by the other side, but I thought Sotomayor was doing pretty well - Harriet Miers she ain't.
Posted by: KeithB | June 25, 2009 10:21 AM
KeithB: The "embattled nominee" is Dawn Johnsen, not Sotomayor.
Posted by: chancelikely | June 25, 2009 11:07 AM
chancelikely:
I would say doh!, but I clearly can't be sure that I read your post correctly.
Posted by: KeithB | June 25, 2009 11:22 AM
They can afford to be consistent. They don't have to run for election.
It is nice to see, though.
Posted by: BaldApe | June 25, 2009 12:04 PM
Just my opinion, but it seems to me that to keep a proper balance between the Legislative and Executive branches, the Supreme Court bench *must* be controlled equally by the other two. Otherwise, I don't see how you can avoid an imbalance.
I give the word "consent" a very strong meaning. There can be no presumption that consent will be given.
As for your line about "the consequence of elections" -- the composition of the Senate is *also* a consequence of elections; why is there role lesser?
So that's my view -- why do you see it so differently, Ed?
Posted by: xebecs | June 25, 2009 1:06 PM
All of this strikes me as rather off the mark. The problem here is that the authors of the advice and consent clause didn't anticipate the current cloture rules.
Obviously, as xebecs says @7, there can't be a presumption of consent. If 50 senators want to oppose a nominee to the Supreme Court, a lower, court, or some executive branch office because he wears Hawaiian shirts to work or eats hot dogs with ketchup instead of mustard, that is entirely their prerogative. I don't see much good done by lecturing them on "deference" to the executive.
On the other hand, the current rules allow any 41 senators to do the same. This is somewhat problematic as it leads to gridlock on what should be relatively uncontroversial and non-ideological appointments to lower courts and executive branch offices.
I'd like to see the majority more frequently force the minority to actually debate things they are "filibustering" rather than simply allow them to declare their intention to filibuster and whip 41 votes. Barring that, it would be nice if both parties could find a consensus around changing the rules (at least for nominations) so that failure to invoke cloture could only delay a confirmation vote (say, for a month?) rather than prevent it indefinitely.
(Incidentally, this isn't inconsistent with my position during the "nuclear option" / "Constitutional option" debate during the 109th Congress. "Changing the rules" of the Senate by raising a deliberately incorrect point of order rather than through the rule-changing procedure laid out in the rules is, for rather obvious reasons, both hugely improper and not conducive to cooperation in government. I'm not calling for strong arm tactics to force a rule change, I'm suggesting negotiations aimed at reaching consensus on a more workable rule that would apply regardless of which party held the majority.)
Posted by: Douglas McClean | June 25, 2009 5:38 PM
What's the change we really need? Find plenty of examples at: http://obamaprayers.blogspot.com
Posted by: Rcik Garner | June 30, 2009 3:50 PM