That smart Ruth Marcus raises questions about "the McConnell standard" for judicial confirmations

Did you know that Our Miss Mitch has a "standard"?

by Ken

Really, don't we all tend to judge people's smartness by how well they agree with us? You know, like with that smart-as-a-whip Ruth Marcus and her excellent Washington Post column today, "Broken confirmation: High court nomination process gets worse."

I know I've suggested that our Ruth always gives me the hermetic, locked-away-from-reality feeling of being locked up in the attic -- you know, like the first Mrs. Rochester in Jane Eyre. Still, sometimes the view from the attic is, er . . . well, okay, there's some of the usual silly pseudo-Olympianism to be bitched about, but all the same, our Ruth makes some nice points about a subject dear to my heart: the possibly fatal final corruption of the Supreme Court confirmation process.

Ever the even-hander, Ruth starts out by noting that Elena Kagan "did not live up to the Kagan standard of openness in answering questions during her confirmation hearing," even though Kagan herself has answered questions about that, and it's actually been discussed quite a lot, as for example Ronald Dworkin did ever so thoroughly in the NYRB piece I referenced in the above post. More interesting, though, is the next charge: "Mitch McConnell did not live up to the McConnell standard of deference in voting against her."

The McConnell standard? I'd never heard of it, either, but in a recent session with reporters, the Senate minority leader mentioned that he had once written a law review article outlining the respect the Senate should show to a president's choice of Supreme Court nominee. The Kentucky Republican sounded wistful, almost sheepish, as he acknowledged how far the Senate, himself included, had departed from the standard he once set out.

"It will always be difficult to obtain a fair and impartial judgment from such an inevitably political body as the United States Senate," McConnell wrote in the Kentucky Law Journal. "However . . . the true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being."

That was 1971, when McConnell was a young staffer for Sen. Marlow Cook (R-Ky.) and the Senate had just rejected two of President Richard Nixon's Supreme Court nominees -- Clement Haynsworth and G. Harrold Carswell -- before finally confirming Harry Blackmun.

But times have changed -- and not for the better. The deterioration has been both sudden and precipitous. "I voted for Breyer and I voted for Ginsburg, and I applied the standard that I had written in my law journal article in 1971 that basically the president won the election and if the person was not mediocre or obviously unqualified then we ought to have a less assertive role," McConnell said at a breakfast last week sponsored by the Christian Science Monitor.

Justice Stephen Breyer was confirmed by a vote of 87 to 9. Justice Ruth Bader Ginsburg was confirmed 96 to 3. As recently as 2005, Chief Justice John Roberts was confirmed 78 to 22, with the support of 22 Democrats and one independent.

Apparently Ruth was allowed out of her attic to attend the Monitor breakfast, and it set her to thinking about the confirmation process, which she argues "has been degraded into a partisan political fight, in which senators of each side line up, with a few odd defections, with their own party. Justice Samuel Alito received only four Democratic votes. Sonia Sotomayor had the backing of just nine Republicans. Kagan got only five."
Now comes that outburst of Ruthian, "on the one hand, on the other hand" even-handedness :

The debate about who is to blame for this unhealthy state of affairs is as tangled and as contested as any tribal battle over territory. Republicans argue that Democrats fired the first shot with filibusters of lower-court nominees. Democrats say they were forced to extreme actions by the extremeness of George W. Bush's judicial nominees, and that in any event Republicans have since taken it up a notch. Or several.

I find the whiny, they did it first debate as unconvincing from bickering senators as it is from bickering children. I don't care who started it. What concerns me is the corroded state of the confirmation process and the prospect of worse to come.

Except that by her own testimony, there is a difference between the Democratic and Republican contributions to this ugly new reality "of near automatic opposition to the other party's nominee"

Voting against Robert Bork was one thing; voting against Elena Kagan quite another. Bork's judicial philosophy was demonstrably outside the mainstream. There is nothing in Kagan's background that came close.

Ruth took advantage of her breakfast breakout to solicit testimony from the horse's ass's mouth:

"The process has become more political," McConnell acknowledged. "But Senate Republicans didn't set the standard. Senate Democrats . . . put us in the position that we're in, and it's very hard for me to make the argument to my members, this new standard having been established, you should ignore it."

Or, as he told me after the breakfast, "We are where we are."

Um, what? Miss Mitch, Miss Mitch, you're fading on us. Ruth won't let you get away with this, you naughty thing:

Actually, we are only where we are because senators -- on both sides -- who know better have chosen not to speak out. It's too tempting not to quote McConnell again: "The true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being."

Of course this wasn't exactly my cause for concern regarding the broken-beyond-repair confirmation process. My concern was that the Right has gotten its hooks in, and now all nominees must profess loyalty to the right-wing-approved, though utterly fraudulent standard of "just applying the law."

Of course to our Ruth that would be pointing a finger of blame, an impermissible deviation from the "on the one hand, on the other hand" standard.

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