These are the rules of the body. Both parties use them.

To counter the interesting interpretation of the Senate's role presented in the article, I offer you the work of a scholar. Yes, I know: clerked for Thurgood Marshall, graduated magna cum laude from Harvard Law, worked on law-reform activities in South Africa, the Ukraine and Russia... what a bum.

Cass R. Sunstein, law professor at University of Chicago Law School, on ideology in considering judicial appointments.

An excerpt:
Because this is a period of conservative judicial activism, it is very different from other eras. For example, the period from 1935 to 1950 was generally one of judicial caution, in which the Court tended to uphold whatever the elected branches did. The period from 1958 to 1968 saw a great deal of left-wing judicial activism. We might even say that the Rehnquist Court is the conservative counterpart to the Warren Court, showing an even greater willingness to strike down legislation.



In terms of sheer competence, no one should doubt that the current Supreme Court is unusually distinguished. But there are two disturbing facts about the current Court and indeed the current federal judiciary as a whole. First it does not defer to democratically elected branches. Second, it shows a distinctive ideological tilt. It is fair to say that it has a heavy right wing, a heavy center, but no left at all. Let me take these points in sequence.

The simplest fact about the Rehnquist Court is that it has struck down more federal laws per year than any other Supreme Court in the last half century. Indeed, the Rehnquist Court has been significantly more aggressive in invalidating federal statutes that the Warren Court itself. Because the Supreme Court struck down only one federal statute between the founding and 1856, there is a good chance that the Rehnquist Court is the all-time national champion, in terms of its sheer willingness to strike down federal statutes.2'Many of the statutes invalidated by the Court have had strong bipartisan support within Congress, and in many of the relevant cases, there was a powerful argument on behalf of constitutionality. . . .

. . . In an ideal world, neither Democrats and Republicans would have to think, most of the time, about the political convictions of judicial nominees. In such a world, both Republicans and Democrats would insist on high-quality judges who would decide cases based on legal grounds that could be accepted by people with diverse views. As I have suggested, rule by left-wing judges is as bad as rule by right- wing judges. In the 1970's, I believe that Republicans were right to attack undemocratic, overly ambitious rulings of the Warren Court. Yet by focusing so carefully on judicial appointments, recent officials have also produced undemocratic judiciary, one with far too little respect for the prerogatives of the elected branches.

If President Bush seeks judges with political missions, there is only one remedy. As a minimal step, the Senate should be prepared to block any effort by Mr. Bush to fill the courts with people of a particular ideological stripe. Of course the Senate has the power to refuse to consent to a presidential appointment; and the Senate should deny its consent to nominees who cannot demonstrate that they have a healthy respect for democratic prerogatives, and will refuse to participate in any general effort to engraft new constitutional limitations on congressional power. Justices Scalia and Thomas have been distinguished members of the Court, and their voices deserve to be heard. But a federal judiciary that follows their lead would make unacceptable inroads on democratic self- government. The Senate should not permit this to happen.



Regards--
Mary Anne