Today POLITICO Arena asks:
Is Marc Thiessen right that more GOP than Dem SCOTUS picks go awry?
My response:
Thiessen is absolutely right — more GOP than Dem SCOTUS picks go awry — but you have to be careful about what “going awry” means. Judging isn’t, or shouldn’t be, a “political” matter. Yet since the New Deal “constitutional revolution” that followed FDR’s infamous 1937 Court-packing threat, that’s what it’s too often been.
Democrats have understood and championed that. Indeed, they make no bones about reading the Constitution, which was written largely to limit government, as authorizing Congress to do almost anything. By contrast, Republicans have been uneven at best in reading the Constitution. Their initial reaction to the New Deal juggernaut arose only in the mid-1950s. Reacting to the Warren Court’s “rights revolution,” they called simply for “judicial deference” to the political branches, the very branches that were giving us ever more government. In the late ’70s, however, a more sophisticated “classical liberal” school began to emerge in Republican circles, calling for “judicial engagement” to better check out-of-control government, but it took some time before that view became a serious force. Yet it was clearly the force at the core of the opposition to ObamaCare.
The upshot for today’s question, however, is that this ambivalence — and, let’s be honest, obliviousness — among many Republicans about basic constitutional theory and history has led to a fractured and often uninformed judicial nomination process. Do we need any better example than George W. Bush’s selection of Harriet Miers, or his father’s selection of David Souter? To be sure, the dominant political and legal culture plays a part in explaining the differences between Republican and Democratic nominees. On balance, however, Democrats have had a better grasp than Republicans of their agenda and the methods needed to achieve it. But if the blowback Chief Justice Roberts is now receiving is any indication, that may be changing, and that would be good.
