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Crystal Balls and Future Judicial Nominations:

Assuming that Judge Alito is confirmed by the full Senate, the "precedent question" rears its ugly head--will party-line votes become the future of Supreme Court nominees? The heated Bork and Thomas confirmations did not appear to set a precedent, in that Ginsburg and Breyer were confirmed by overwhelming bipartisan majorities. Assuming Alito is confirmed on roughly a party line vote, will this set a precedent? Joe Malchow says "yes," what goes around inevitably will come around (and adds a pithy quote from Senator Jon Kyl to back it up). And the urging of the base will ensure that. The subsequent confirmations of Ginsburg and Breyer, by contrast, suggest that the Bork and Thomas experiences did not seem to set a precedent.

And while I have your ear, a question for the gathered. Leaving aside Vanguard and CAP (which seem to have evaporated as issues) is there a principled reason why a Senator might vote for Roberts but against Alito? Are there particular questions or elements of their record that would justify a different vote in the two cases? Moreover, it seems to me that by almost any reasonable analysis of the record, Alito looks much more like Roberts than either Bork or Thomas (whose confirmations were somewhat sui generis, for different but unique reasons), so it is not obvious to me why Alito's "no" vote total would look more like Bork's and Thomas's than like Chief Justice Roberts's.

While I'd be interested in hearing from anyone who can articulate a principled explanation for why one my vote differently on Roberts versus Alito, I'd be especially interested in hearing from readers who supported Roberts but would oppose Alito (as some 20 or so Senators appear poised to do). I ask because if there is a principled distinction between the two, that could very well shed some light on whether a party-line vote on Alito could be precedent setting.

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