The Ploy of Those Out of Power

The senior Senator from New York, Charles Schumer, weighed in today on the Supreme Court vacancy (here). The first part of Schumer's piece has much to commend it. But then he writes this paragraph:

Now, what kind of person should the nominee be? Because Justice O'Connor was the pivotal swing vote on so many vital issues, the President should take care to preserve balance on the court. I have often said that a Supreme Court with one William Brennan and one Antonin Scalia would be an interesting and vibrant court. But a Supreme Court with five of either would not.

Several things come to mind. One, Schumer does not articulate a desire for a nominee who is ethical, intelligent or competent. Perhaps he just assumes those characteristics for the nation's highest court and thus skips over them. I'm less sanguine about such things and hope that ethics, intelligence and competence continue to be mentioned as chief criteria in court nominations.

Two, Schumer bases his argument on the past balance of the court, specifically writing, "because O'Connor was the swing vote on vital issues..." This is rhetoric that is not overflowing with sound meaning. To extend his point about a Justice's past votes on vital issues, would Schumer also say that upon Rhenquist's retirement the President should take care to preserve the balance on the court and nominate a conservative? Where does it say that "court balance" is an ideal? Given the court's balance in 1993 did Clinton run afoul of this principle by nominating a liberal (Ginsburg) to replace moderate conservative Byron White? Why should Bush care about "court balance" if he believes activist justices have written multiple wrong decisions in the past? If one thinks strict constructionism is the desirable approach to the Constitution and one has an opportunity to pull the Court in that direction, why give up one's principles for this so-called ideal of "court balance."

I could be wrong but my guess is that this argument is a red herring; I don't believe Schumer actually, truly cares about "the balance of the court." Rather, the out-of-power Dems are trying to find a way of casting the nomination debate in a way that gains enough traction that they can mitigate the conservative-ness of Bush's selection. The balance of the court is an argument from weakness. I do not believe the Dems would be making such an argument if they had power. Or in an imaginary world, if Bush declared his nominee to be an activist liberal, thus destroying the balance of the court in favor of a liberal court, do you think Schumer would object? Enough with red herrings and spin (and this goes for the GOP, as well). Say what you believe and let the chips fall.

Third, Schumer invokes the notion of a "vibrant and interesting court" and then says a court with 5 Brennans or Scalias would not be vibrant or interesting. Since when is "interesting" a criterion of the Supreme Court's work? Who cares? Is this for the cognoscenti to have interesting things to talk about? The work the court does, addressing what Schumer already called "vital issues," is intrinsically interesting regardless of the philosophical makeup of the court. I'm less interested in fodder for parlor games and cocktail parties than having O'Connor's replacement interpret the Constitution faithfully. Again, this is part of an overall argument from weakness because the Dems are out of power and they're hoping to find some red herring to fixate upon in order to gain traction to oppose the President.

Who knows, in an environement of media saturation it might just work. Maybe not in the selection of the nominee but perhaps in the Judiciary Committee or floor debate. If the Dems can get enough of the country whipped up about "court balance on vital issues," perhaps the moderate GOP senators won't close off debate or invoke the nuclear option, should it come to that.