Sherman Minton, an associate of FDR, refused to appear before the U.S. Senate but was nevertheless confirmed as a Supreme Court justice.
The Senate’s clout in the process of making Supreme Court justices seems to have grown since the early days of the republic, and today we see a minority becoming increasingly assertive.
Mark Steyn points out that the coming battle over Judge Roberts will reflect this minority’s attempt to pretend that it won the last two presidential elections and to assert control over an institution they revere far more than votes cast by mere citizens:
“Those whom the gods would destroy they first make chads,” writes Steyn. “When their frantic swinging, dangling and dimpling availed them nought, Democrats were consumed by bitterness. Understandably enough. That’s one reason why some of us like the old-fashioned method of having the big questions of the day decided by the votes of free-born citizens. When you leave them to be adjudicated by nine men and women on the basis of their opinions and you wind up on the losing side, it’s bound to feel less satisfactory. But who turned the election into a lawsuit in the first place? It was the Democrats who went before the courts arguing for the inclusion of dimples, and the exclusion of military ballots, and the post-election amendment of the election law.
“In his dissent from the Supreme Court’s decision in Bush vs. Gore, Justice John Paul Stevens wrote, ’Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.’
“Oh, if only. For four years, Democrats drove around with bumper stickers mocking ever more stridently the ’selected President.? Yet, pace Justice Stevens, the Dems’ faith in the selection process — in judges as the true parliament of this great Republic — restored itself within weeks, at least when it comes to selecting gay marriage, abortion, affirmative action, etc. In the words of leading Democratic thinker Nancy Pelosi, ’It is a decision of the Supreme Court — so this is almost as if God has spoken.? She was talking about ’eminent domain’ not Bush vs. Gore, but you can’t have it both ways: It can’t be the Word of God one day and merely ’Bush’s daddy’s pals’ the next.”
The minority will attempt to make sure that the court is the Word of God, according to Kennedy, Schumer, and Durbin, by demanding answers to questions a Democratic nominee would refuse to answer.
As Robert Novak (purveyor of the delightful Sherman Minton factoid) notes, Justice Ruth Bader Ginsburg was allowed to refuse:
“Twelve years ago at a Senate Judiciary Committee confirmation hearing, Sen. Patrick Leahy propounded a theoretical question about constitutional separation of church and state. ’I prefer not to address a question like that,’ replied the Supreme Court nominee, Judge Ruth Bader Ginsburg. Leahy, a dogged questioner, pressed for an answer. ’Senator,’ Ginsburg persisted, ’I would prefer to await a particular case.’ In response, Leahy was uncharacteristically obsequious: ’I understand. Just trying, Judge. Just trying.’
“Will Pat Leahy, now Judiciary’s ranking minority member, and his Democratic colleagues exercise such forbearance when Judge John G. Roberts predictably takes the same posture Justice Ginsburg assumed in July 1993? That would be most unlikely. With Roberts leaving a meager paper trail and a short time on the District of Columbia Circuit Court, Democrats are preparing hundreds of the substantive questions Ginsburg refused to answer.
“Accordingly, Roberts’s confirmation managers are putting forth the ’Ginsburg Standard.’ That challenges Democratic senators who in 1993 did not criticize the petite (barely more than 5 feet tall), 60-year-old woman when she coolly refused to answer questions. But then, there was no threatened move of the court’s political balance to the right as is foreshadowed today by the Roberts nomination.
“There is no constitutional or historical precedent for subjecting judicial choices to a senatorial third degree. No Supreme Court nominee was even interrogated by the Senate until 1925, and committee questioning was sporadic until it became standard confirmation practice in 1955. In 1949, former Sen. Sherman Minton refused to appear as his erstwhile colleagues requested and was confirmed anyway.”