# Should the U. S. Senate give Bush's judicial nominees a hearing? **URL:** \ **Category:** Great Debates\ **Created:** [May 13, 2002, 5:20pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843 "2002-05-13T17:20:41Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 13, 2002, 11:56pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/21 "2002-05-13T23:56:41Z")
> [@](#): > > \*Originally posted by SuaSponte \*According to your own links, the (Democratic( Senate has reviewed and approved more of Bush’s nominees in the past 12 months than the (GOP) Senate did in all of Clinton’s last term. \*\* By linking to that New Republic article, I was trying to be fairenbalanst, but I don’t vouch for it. I have seen others give statistics that looked opposite. I do not know how to reconcile them right now. I note that the NR says > [@](#): > > 1995 through 2000, when Bill Clinton was in the White House and Republicans controlled the Senate, the Senate **confirmed only 35 percent of Clinton’s appellate court nominees** ; by the time Clinton left office the number of appellate court vacancies had more than doubled. Indeed, **in confirming 52 of Bush’s nominees** in one year, the Democratic Senate has already surpassed the number of judicial nominees the Republican Senate confirmed in the last four years of the Clinton administration. Careful reading (and other material that I will try to locate) suggests that the Dems have approved very few of Bush’s _appellate court_ nominees. Note that the quote says “Clinton’s appellate court nominees,” but it says, “Bush’s nominees.” I will try to find a fair statistical comparison. I care more about accurate statistical analyisis than I am about conservative causes. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 14, 2002, 2:56am UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/22 "2002-05-14T02:56:59Z")
Judges are appointed with “the **advice** and consent of the Senate.” Maybe if presidents in general, and GW in particular leaned a little more on the advice side of the equation they wouldn’t have so much trouble. Judges of the federal courts are not members of the president’s “team” and there is no reason that the Senate should rush to consider judges they deem to be bad choices based on their records. Do you really believe that the senators don’t know all about the records of these appointees? ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [May 14, 2002, 3:20am UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/23 "2002-05-14T03:20:53Z")
While this whole process has gotten a bit unseemly, one has to understand, december, what you are asking the Democrats to do here if they are the ones to adopt the moral high ground…Essentially, you are asking them to cave in to a Republican strategy of packing the court by delaying on Clinton nominees until such time as a Republican President takes the White House and can fill those vacancies with his nominees. You are teaching them that such underhanded tactics pay. I think a very reasonable compromise for the Democrats to make is the one discussed in the New Republic article…essentially to say, “Well, we will let you fill these vacancies that you created by blocking our appointments. However, we do demand in return that you appoint moderates and fairly moderate conservatives of the Kennedy and O’Connor mold rather than the sort of rabid conservatives of the Scalia, Thomas, and Bork mold.” Otherwise, the only lesson learned by the Republicans will be that their tactics during the Clinton administration paid off and they should continue them in the future. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [May 14, 2002, 3:24am UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/24 "2002-05-14T03:24:19Z")
> [@](#): > > \*Originally posted by astorian \* > 3) A liberal who figures the Warren Court gave the Left everything they ever wanted, and then some. Knowing there’s virtually nothing more to be done, he’s content to use his vote merely to protect the Warren Court’s legacy, rather than to push America farther to the Left. (Steven Breyer, Ruth Ginsburg.) Trust me as a member of “the Left”: there are plenty of things that the Warren Court didn’t give me that I would like. Plenty. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 14, 2002, 4:25pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/25 "2002-05-14T16:25:45Z")
[E.J. Dionne](http://www.washingtonpost.com/wp-dyn/articles/A11119-2002May13.html) > [@](#): > > Senate Republican Leader Trent Lott, who now demands that the Senate vote on Bush’s judges, is the same Trent Lott who declared in 1999 that “getting more federal judges is not what I came here to do.” He added that "there are not a lot of people saying, ‘Give us more federal judges.’ " Except that this is exactly what Lott is saying now. So what changed in the meanwhile, toupee boy? ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 14, 2002, 7:31pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/26 "2002-05-14T19:31:02Z")
All kinds of statistics are out there. Some quotes: > [@](#): > > Only 18 of President Bush’s 64 judicial nominees have been confirmed this year - just 28 percent. In their first years, former Presidents Reagan, Bush, and Clinton had 91, 62, and 57 percent of their nominees confirmed. And even though George W. Bush began making nominations three months earlier than those predecessors, giving Mr. Leahy plenty of time to confirm judges, his committee has kept things moving at a crawl 11/15/01 [http://www.aclj.org/news/nf\_011116\_partisanship.asp](http://www.aclj.org/news/nf_011116_partisanship.asp) > [@](#): > > **Orrin Hatch** > First, there is a seemingly immortal myth around here that it was the Republicans who created the current vacancy crisis by stalling President Clinton’s nominees. That is purely and unmistakably false. The fact is that the number of judicial vacancies decreased by three during the six years of Republican leadership. There were 70 vacancies when I became chairman of the Judiciary Committee in January 1995, and President Clinton was in office, and there were 67 at the close of the 106th Congress in December 2000, the end of President Clinton’s presidency. The Republicans did not create – or even add to – the current vacancy crisis. > \ > an illusion has been created out of thin air that the Republicans left an undue number of nominees pending in Committee without votes at the end of the Clinton Administration. Again, more Arthur Anderson accounting here. Get ready for the truth: There were 41 such nominees, let me repeat, 41 – which is 13 less than the 54 that Democrats who controlled the Senate in 1992 left at the end of the first Bush Administration > \ > President Clinton had the privilege of seeing 97 of his first 100 judicial nominees confirmed. And the average time from nomination to confirmation was 93 days. Such a record was par for the course until the current Senate leadership took over last year: President Reagan got 97 of his first 100 judicial nominations confirmed in an average of 36 days, and President George H.W. Bush saw 95 of his first 100 confirmed in an average of 78 days. > \ > As we sit here today, the Senate has confirmed only 52 – only 52, not the 97 President Clinton got – only 52 of President Bush’s first 100 nominees, and the average number of days to confirm those few that have been is over 150 – and increasing every day. [http://www.aclj.org/news/judicialconf/020509\_hatch.asp](http://www.aclj.org/news/judicialconf/020509_hatch.asp) These two quotes apparently indicate that Leahy’s Judiciary Committee has been far slower to confirm than Hatch’s was. OTOH there is this quote from the New Republic article cited in the OP: > [@](#): > > From 1995 through 2000, when Bill Clinton was in the White House and Republicans controlled the Senate, the Senate confirmed only 35 percent of Clinton’s appellate court nominees; by the time Clinton left office the number of appellate court vacancies had more than doubled. Indeed, in confirming 52 of Bush’s nominees in one year, the Democratic Senate has already surpassed the number of judicial nominees the Republican Senate confirmed in the last four years of the Clinton administration. [http://www.thenewrepublic.com/doc.mhtml?i=20020520&s=zengerle052002](http://www.thenewrepublic.com/doc.mhtml?i=20020520&s=zengerle052002) As an actuary, I’m flummoxed. Is there some combination of nominations and approvals that could make all these statements true? Let’s see: In terms of the first 100 nominees, Hatch’s figures look like apples-to-apples. On that basis, Leahy has been far slower. Leahy & the Dems approved only 57 in an average of 150 days; Hatch and pubbies apprrved 97 in an average of 93 days. Furthermore, the Hatch pace was only a bit slower than the first 100 appointments of the two prior Presidents. The New Republic didn’t give a figure for the first 100 nominations. The New Republic says that the pubbies only approved 52 judges in Clinton’s last 4 years, yet Hatch said they approved 97 of his first 100 nominees in an average of 93 days. Hatch also says that in the 6 years when the pubbies were in charge, the number of vacancies went DOWN from 70 to 67. 😕 In terms of the number of nominees in the pipeline, Hatch says there were 41 at the end of Clinton’s term and 52 at the end of Papa Bush’s term. OTOH look at the New Republic quote above. It’s hard to see how all could be true. One point is that the NR picks its samples. First it addresses appellate nominees in the 6 years 1995 - 2001. Then it looks at all judicial nominees in the 4 years 1997 - 2001. This raises a possibilty that specific sub-samples were selected to make Hatch’s record look worse than it really was. Or, one side or the other may be lying. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 15, 2002, 2:35am UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/27 "2002-05-15T02:35:27Z")
> [@](#): > > \*Originally posted by december \* > \*\*All kinds of statistics are out there. Some quotes: > > … > > In terms of the first 100 nominees, Hatch’s figures look like apples-to-apples. On that basis, Leahy has been far slower. Leahy & the Dems approved only 57 in an average of 150 days; Hatch and pubbies apprrved 97 in an average of 93 days. Furthermore, the Hatch pace was only a bit slower than the first 100 appointments of the two prior Presidents. The New Republic didn’t give a figure for the first 100 nominations. > > … > > In terms of the number of nominees in the pipeline, Hatch says there were 41 at the end of Clinton’s term and 52 at the end of Papa Bush’s term. OTOH look at the New Republic quote above. It’s hard to see how all could be true. > > … > > Or, one side or the other may be lying. \*\* Y’know this sort of score keeping, on a lethal level, leads to the tit-for-tat killings in the mideast and gets nowhere. Sooner or later some accomodation has to be made. The Congress, by the power of the purse, eventually has the last word. The question I have is, why should the senators rush to hear an explanation of a record that they already think is unsuitable for appointment as a US judge? There must be numerous people who are reasonably close to GW’s political philosophy who could be confirmed without a lot of bruhaha. One of the president’s jobs is to appoint for judgships those who can get through the confirmation process. Didin’t GW kind of promise to appoint “his kind of judge” during the election campaign? What do you suppose he meant by that? Was he so stupid, or full of hubris, that he thought he could bludgeon the senate giving consideration to just anybody he puts up just because he **the president**? ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 15, 2002, 4:29pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/28 "2002-05-15T16:29:52Z")
> [@](#): > > \*Originally posted by David Simmons \* > Y’know this sort of score keeping, on a lethal level, leads to the tit-for-tat killings in the mideast and gets nowhere. > > > [@](#): > > > > The question I have is, why should the senators rush to hear an explanation of a record that they already think is unsuitable for appointment as a US judge? > > Good question. [ol][li]I don’t believe the dems when they say that appointees have unsuitable records. Why? They have not identifed a single nominee whose record is unsuitable. Secondly, every single nominee has a good rating from the ABA. The dems may have an ulterior motive for delaying – namely to leave judicial activist judges in power as long as possible. That theory was propounded [here](http://www.opinionjournal.com/diary/?id=110001709) today.[/ol] [/li][quote] > \*\*A Court Intrigue > Procedural funny business in a racial-preference case. \*\* > > Judge Danny Boggs, a 16-year veteran of the Sixth U.S. Circuit Court of Appeals, used a blistering dissent to lay out a shocking case of judicial manipulation that this week may have resulted in an artificial 5-4 decision upholding the University of Michigan’s race-based admissions policy for its law school. … > > …his opinion also included a “procedural appendix” that laid out how the court’s chief judge had ignored the court’s “long-established rules” in replacing the three-judge panel originally set to hear the case… > > … Judge Boggs laid out a disturbing series of decisions that bypassed the usual procedure. > It’s now clear why only eight of President Bush’s 30 appeals court nominees have been confirmed and one, Judge Charles Pickering, saw his appointment killed by a party-line committee vote. A majority of the Senate would likely vote to confirm most of these aspiring judges if their nominations reached the floor. Democrats have decided that the judicial activism that has dominated the courts for four decades now is too important to have niceties such as the president’s power to appoint the judiciary interfere with it. One might dismiss such a dispute as so much partisan mud-wrestling, but we’re debating something as basic as the equal-protection provisions of the Constitution. > [@](#): > > **David Simmons** > There must be numerous people who are reasonably close to GW’s political philosophy who could be confirmed without a lot of bruhaha. Note the unfairness of the Democratic charge. When Joseph McCarthy said there were 31 Communists working in the State Department, he couldn’t be proved wrong, because he didn’t identify the supposed communists. Similarly, when the dems say these nominees are “out of the mainstream”, they’re on safe grounds, as long as they don’t idenfify which nominees they’re complaining about. _That’s_ why they won’t hold hearings. Then the nominees would be exposed as qualified and honorable. > [@](#): > > Didin’t GW kind of promise to appoint “his kind of judge” during the election campaign? What do you suppose he meant by that? I don’t have to suppose. He said what he meant by it, and it was essentially the description **Sua Sponte** provided earlier in this thread: > [@](#): > > someone who looks to the facts of the case, and applies the relevant laws, constitutional provisions and precedent to those facts, without pre-ordaining the outcome. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 15, 2002, 5:18pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/29 "2002-05-15T17:18:21Z")
Note which party controlled the Senate during Clinton’s first two years, and the corresponding approval rate Hatch would like to have you consider the standard for this Congress. Surely an actuary can grasp the fundamental dishonesty of that pious argument. Bush did promise to “appoint more justices like Scalia and Thomas”, ya know. That’s the problem - and there have been no more activist, precedent-ignoring Justices in recent memory. Nor is that what We the People voted for, either. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 15, 2002, 6:04pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/30 "2002-05-15T18:04:59Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > Note which party controlled the Senate during Clinton’s first two years, and the corresponding approval rate Hatch would like to have you consider the standard for this Congress. Surely an actuary can grasp the fundamental dishonesty of that pious argument. Good point, **Elvis**. In fact that rate _was_ comparable to the pace at which a Democratic Senate approved nominees for Reagan & Bush Senior. In other words, Hatch’s statistics show that Democrats haven’t matched _their own_ standard. To make a valid comparison the other way, there would have had to be a Democrat first elected President along with a Republican Senate. I cannot remember when that last occurred. > [@](#): > > Bush did promise to “appoint more justices like Scalia and Thomas”, ya know. That’s the problem - and there have been no more activist, precedent-ignoring Justices in recent memory. This is a strong accusation. Can you back it up with a list of their many precedent-ignoring, activist decisions? (I bet it would be a lot easier to find precedent-ignoring decisions on the other side. E.g., decisions to rule the death penalty unconstitutional even after the SCOTUS had held it to be Constitutional.) ---
**Author:** ![Semp](https://avatars.discourse-cdn.com/v4/letter/s/fbc32d/32.png) [@Semp](https://boards.straightdope.com/u/Semp)\ **Post date:** [May 16, 2002, 12:20am UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/31 "2002-05-16T00:20:32Z")
> [@](#): > > \*Originally posted by december \* > \*\*Good point, **Elvis**. In fact that rate _was_ comparable to the pace at which a Democratic Senate approved nominees for Reagan & Bush Senior. In other words, Hatch’s statistics show that Democrats haven’t matched _their own_ standard. \*\* But doesn’t that ignore the Republicans’ standard? And isn’t that what the question was about in the first place? Democrats must be lapdogs, but Republicans can do whatever they feel like? > [@](#): > > \*\*To make a valid comparison the other way, there would have had to be a Democrat first elected President along with a Republican Senate. I cannot remember when that last occurred. This is a strong accusation. Can you back it up with a list of their many precedent-ignoring, activist decisions? \*\* Do you think Scalia was being fair in the 2000 election decision when he already announced Bush the winner? And why is it that judges who lean liberal get slapped with the “activist” tag, when someone like Limbaugh (the judge, not the pontificator) doesn’t when he issued his “video games are not speech” ruling (with a load of crap for backing)? > [@](#): > > \*\*(I bet it would be a lot easier to find precedent-ignoring decisions on the other side. E.g., decisions to rule the death penalty unconstitutional even after the SCOTUS had held it to be Constitutional.) \*\* Are you talking federal or state judges? I don’t know of any federal judges declaring the DP unconstitutional lately, but a state judge can because it would be based on that state’s constitution. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 16, 2002, 1:43am UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/32 "2002-05-16T01:43:38Z")
> [@](#): > > \*Originally posted by Semp \* > But doesn’t that ignore the Republicans’ standard? Hatch’s speech included other statistics that compared Clinton’s results with a Republican Senate vs. Bush’s results with a Democratic Senate. > [@](#): > > And isn’t that what the question was about in the first place? There were several questions. The question in the OP was whether Leahy is right to not hold hearings. For that question, it is relevant that other Democratic Senates did hold hearinngs and make decisions. > [@](#): > > Do you think Scalia was being fair in the 2000 election decision when he already announced Bush the winner? IANAL. SCOTUS by 7 to 2 ruled that the Florida SC had behaved wrongly. (The other two didn’t disagree; they just didn’t want to take jurisdiction.) Whether Scalia et al were right or wrong, they certainly weren’t ignoring precedent, in this unique case. If anything, it was the 2 dissenters who were arguably ignoring SCOTUS’s precedent of routinely over-ruling State SC decisions that they felt violated civil rights. > [@](#): > > And why is it that judges who lean liberal get slapped with the “activist” tag, when someone like Limbaugh (the judge, not the pontificator) doesn’t when he issued his “video games are not speech” ruling (with a load of crap for backing)? I didn’t like that decision, either, but I don’t know that it violated precedent. BTW I think that Judge Stephen Limbaugh is a cousin of Rush and, oddly enough, a good friend of Black Democrat Judge Ronnie White, who was attacked unfairly by John Ashcroft. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 16, 2002, 6:48am UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/33 "2002-05-16T06:48:33Z")
> [@](#): > > \*Originally posted by december \* > \*\* I don’t have to suppose. He said what he meant by it, and it was essentially the description **Sua Sponte** provided earlier in this thread: > \*\* > > ## quote: > > ## someone who looks to the facts of the case, and applies the relevant laws, constitutional provisions and precedent to those facts, without pre-ordaining the outcome. Wait a minute! Why don’t you tell us what GW said instead of citing a **SuaSponte** post that was at best tangential to GW’s campaign statement? PS I’m not at all sure that GW could say those words in that order on his best day, going downhill and with the wind. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 16, 2002, 1:29pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/34 "2002-05-16T13:29:02Z")
Wow, **december** is asking for cites. He really does have a sense of humor. Re Scalia’s (and his marionette Thomas’) judicial activism, that has been discussed heavily in this forum, and you’ve even participated. Try a Search. A quick summary is that his (their) “original intent” ideology is inherently activist and nonconservative because it throws out two centuries of historyand case law and precedent, whenever inconvenient, in favor of idolatry of James Madison and company. Now why would anyone want to support such dishonesty in the lifetime-appointed judiciary? Could it be to provide some veneer of respectable rationalization for verdicts the right wants reached for ideological or even religious grounds? ---
**Author:** ![davidw](https://avatars.discourse-cdn.com/v4/letter/d/c4cdca/32.png) [@davidw](https://boards.straightdope.com/u/davidw)\ **Post date:** [May 16, 2002, 2:55pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/35 "2002-05-16T14:55:40Z")
> [@](#): > > Essentially, you are asking them to cave in to a Republican strategy of packing the court by delaying on Clinton nominees until such time as a Republican President takes the White House and can fill those vacancies with his nominees. You are teaching them that such underhanded tactics pay. I think this bears repeating. IMO, the Dems are using an effective political strategy. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [May 16, 2002, 3:24pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/36 "2002-05-16T15:24:58Z")
**december:** > [@](#): > > IANAL. SCOTUS by 7 to 2 ruled that the Florida SC had behaved wrongly. (The other two didn’t disagree; they just didn’t want to take jurisdiction.) Since YANAL, perhaps you might want to check your facts before you make this claim: [quote] In the aftermath of Bush v. Gore, some commentators suggested that it really was a 7-2 decision. See Michael McConnell, A Muddled Ruling, Wall St. J., Dec. 14, 2000, at A26. It was not. Two of the dissenting Justices, Breyer and Souter, agreed that there were equal protection problems with counting votes without uniform standards. See Bush, 121 S. Ct. at 545 (Souter, J., dissenting); id. at 551 (Breyer, J., dissenting). However, their opinions were expressly labeled as dissents. They could have “concurred in part and dissented in part,” but did not. Moreover, the key difference between the majority and the dissents was whether the counting should be halted or continued. The five Justices in the majority voted to end the counting; the four dissenting Justices would have allowed it to continue. **The case was clearly and obviously a 5-4 ruling.** –Erwin Chemerinsky, _Bush v. Gore Was Not Justiciable_, 76 Notre Dame L. Rev. 1093, footnote 4 (2001). Stop spreading misinformation, 'kay? ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [May 16, 2002, 3:26pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/37 "2002-05-16T15:26:33Z")
_grumble grumble_ **december:** > [@](#): > > IANAL. SCOTUS by 7 to 2 ruled that the Florida SC had behaved wrongly. (The other two didn’t disagree; they just didn’t want to take jurisdiction.) Since YANAL, perhaps you might want to check your facts before you make this claim: > [@](#): > > In the aftermath of Bush v. Gore, some commentators suggested that it really was a 7-2 decision. See Michael McConnell, A Muddled Ruling, Wall St. J., Dec. 14, 2000, at A26. It was not. Two of the dissenting Justices, Breyer and Souter, agreed that there were equal protection problems with counting votes without uniform standards. See Bush, 121 S. Ct. at 545 (Souter, J., dissenting); id. at 551 (Breyer, J., dissenting). However, their opinions were expressly labeled as dissents. They could have “concurred in part and dissented in part,” but did not. Moreover, the key difference between the majority and the dissents was whether the counting should be halted or continued. The five Justices in the majority voted to end the counting; the four dissenting Justices would have allowed it to continue. **The case was clearly and obviously a 5-4 ruling.** –Erwin Chemerinsky, _Bush v. Gore Was Not Justiciable_, 76 Notre Dame L. Rev. 1093, footnote 4 (2001) (emphasis added). Stop spreading misinformation, 'kay? ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 16, 2002, 9:31pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/38 "2002-05-16T21:31:38Z")
\>Stop spreading misinformation, 'kay?\< I wrote “SCOTUS by 7 to 2 ruled that the Florida SC had behaved wrongly.” OK? ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [May 16, 2002, 9:49pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/39 "2002-05-16T21:49:17Z")
**Polycarp** , since our DLF isn’t going to respond to your post, I’d like to point out that your email addy in your profile is bouncing. Could you pls email me when you get a minute? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 17, 2002, 5:53pm UTC](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843/40 "2002-05-17T17:53:16Z")
**Andros** , I answered your PM; thanks for the heads up on my e-mail. > [@](#): > > I wrote “SCOTUS by 7 to 2 ruled that the Florida SC had behaved wrongly.” OK? Nope. If your verb had been “opined” you’d have been accurate. But the _ruling_ was a 5-4 one. The two dissents by Souter and Breyer have no legal standing **as rulings** ; dissents simply lay the groundwork for argument in future cases that might overturn a precedent set in the case in which they were dissents. [Previous page](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843.md?page=1) [Next page](https://boards.straightdope.com/t/should-the-u-s-senate-give-bushs-judicial-nominees-a-hearing/108843.md?page=3)