No argument associated with the Democrats these days (I say “these days” because their signature arguments are subject to sudden shifts) is more ludicrous than their notion that Judge Alito — or for that matter any conservative nominee to the Supreme Court — should be opposed in order to protect the Court’s current “balance.”
This argument is eviscerated in today’s New York Times by Harvard law professor John Manning, who writes that “the premise of some ideal and inviolate balance of the court cannot be grounded in principle or put into practice.”
As a matter of principle, to suggest that presidents should select nominees who will leave the court’s ideological composition intact implies that the court’s jurisprudence is always precisely where it should be – that nothing can ever be gained from a change in the perspective, experience or philosophy of any justice. Even more troubling still, the baseline for assessing “balance” at any given moment is almost entirely arbitrary. If today’s balance differs from that of an earlier court, presumably past presidents and Senates already violated the balance principle when they selected and confirmed the members of the court that we now seek to preserve.
If Manning errs at all, it is in taking the Democrats’ argument for “balance” seriously. It is transparently obvious that the principle of “balance” — or any principle, for that matter — has precious little to do with what they want. They don’t want “balance”; what they want is, at best, a liberal court or, failing that, a court that is not more conservative. Since they also believe that courts and law are just politics in another venue, and judges merely politicians in black robes, their desire makes perfect sense. Until, that is, they try to cover a nakedly partisan interest with a fig leaf of principle, which doesn’t work at all.
This whole approach to law is of a piece with the Democrats’ new affinity for judical restraint regarding Congressional power. But wait, that principle, too, has more holes than swiss cheese. Judges should be restrained, in this view, when reviewing actions Congress takes under its Commerce Clause authority, but not when it passes measures like the Solomon Amendment, now before the Court.
I wonder how many Democrats would call for judicial restraint if Congress every found the courage to say it really meant what it said in passing the 1964 Civil Rights Act and cut off federal funds to any educational institution that gave preferences based on race?
Actually, I don’t.
