The thread about Estrada got me thinking. In general, should a nominee for a high court face a test of political alignment, and should the Senate consent to or object to a nominee solely on that basis?
I say not.
For one thing, political alignment is hard to pin down with a candidate. Scalia is a “conservative” right? Everybody thinks so. Would it surprise anybody to learn that he actually filed a vigorous dissent to limit the scope of the mail fraud statute, the favorite ally of prosecutors looking for creative indictments? Would a conservative take away the power of a prosecutor? Well, Scalia dissented arguing that we should, and was joined by “liberal” justices. In the numerous opinions I’ve read as a law student, Scalia often comes down on the “liberal” side of an issue in terms of consequences, because the text is his master. The media may confuse “strict constructionist” or “textualist” with being conservative, but the outcomes of following that creed are not always as expected.
So a political alignment test is potentially unreliable. Even were it reliable, is it a sound basis for forming a decision about a nominee? If the Dems object to a nominee who doesn’t follow the Dem mantra of “Roe is established law, it is a federal issue, stare decisis controls”, could the GOP object to a nominee who wanted to play fast and loose with the mythical beast known as “legislative purpose” and let every expansive abuse of federal power go through under the auspices of the commerce clause? Do we really want the Senate essentially deciding who will be a judge, rejecting otherwise qualified candidates on the basis of a political affiliation? Or do we want them thinking beyond politics, down to the roots of judicial behaviour to the real divide in legal philosophy?
I don’t think we are well served by having the public notions of conservative/liberal color our judgments of nominees. The law isn’t like that, judges aren’t like that, and even if they were what gives us the right to make an “advisory” decision on that basis?