Unilateral disarmament might bring peace, but it might not be the peace desired:
Sen. Richard Lugar on Wednesday became one of the first Republicans to back Elena Kagan's confirmation to the Supreme Court.
[. . .]
He believes that in most cases, Congress should defer to a president's preference in nominations to appointed positions.
[. . .]
Carl Tobias, a law professor at the University of Richmond, in Virginia, said Lugar's statement on why he'll vote for Kagan "suggests that senators should vote for presidents' nominees who are 'clearly qualified.' "
During Chief Justice John Roberts' confirmation hearing, Lugar decried the fact that the confirmation process "takes on the trappings of a political campaign" with oversimplifications and distortions. He urged that the focus be on nominees' qualifications.
Once upon a time, great deference to the president's choice was the standard. As long as the candidate was qualified and not an obvious lunatic, confirmation was all but assured. But that standard has changed. I don't know if it changed about the time of the Bork nomination, but that's the point at which the change was obvious.
Under the new rules, a candidate's judicial philosophy matters very much, almost to the exclusion of everything else. Call it judicial liberalism vs. judicial conservatism or founding principles vs. "living document," but one side wants one thing and the other side another. As long as everybody else is playing by the new rules, what do you gain by sticking to the old rules? Most likely, the other side will get the majority on the court. And your side, even if it wins every issue politically, will lose on many of them in court decisions. Lugar is being like the British soldiers who kept marching in straight rows, just as they always had, and getting picked off by the American Colonists hiding in the bushes. They followed the old rules, bully for them, but we won, and I think most people would agree it's good that we won.
I'm not saying I like the new rules. We once ran editorials supporting deference to the president and, like Lugar, decrying the departures from that standard. But those days are gone. As a strong supporter of adherence to the constitutional text, I don't want anybody from my side to just give up without a fight, and it feels like that's what Lugar is doing.
