The Curmudgeonly Clerk, who may have the best-written blog out there (and certainly the most carefully written and documented--further proof of the high quality of a UT Law education!), notes that in 1986 hard-line conservative Scalia was confirmed to the U.S. Supreme Court unanimously by the Senate, yet now "when political liberals wish to demonize judicial nominees whom they do not wish to see confirmed, they compare them to Scalia." CC asks: "Who has changed in the interim, Scalia or liberals, or both? What accounts for the sort of alarm that his very name evokes in certain quarters?" Here are some, I assume uncontentious, answers to the questions:
(1) Because Scalia may have been the least productive and distinguished member of the University of Chicago Law faculty, he did not have the kind of paper trail that made as clear the radical nature of his views about a range of fundamental constitutional and jurisprudential questions (contrast Bork). After more than 15 years on the High Court, his views are now better-known and appreciated.
(2) In 1986, we had only had five years of the federal courts being stacked with conservative activists. As Dick Posner remarked when he was here in Austin two years ago (for all I know, the Curmugeonly Clerk may have even been in my Jurisprudence class that term, when Judge Posner spoke to us!), at his own confirmation hearings in the early 1980s, there was very little press coverage "because no one yet realized that Reagan was stacking the courts with conservatives like me." (Dick Posner is a great believer in the "no bullshit" approach too.) In the year 2003, it is impossible for anyone remotely law literate to be unaware of the stacking of the courts. While in 1986, a Scalia on the High Court didn't seem that important, it's now clearer to those on the other side how far to the right things have moved, so that each of these appointments now matters a lot.
As I remarked previously, debates about these judicial nominations would be greatly helped by some candor and honesty about the nature of the jobs appellate judges perform. It is inevitable that appellate judges are presented with large numbers of cases in which the law is unsettled--after all, the incentives for parties to pursue such cases through the stage of appeal is greater (when the law offers a clear answer, it's just a matter of cost-benefit analysis by the disputants to bring the matter to a close)--and in which they must exercise moral and political judgment to resolve the matter. Ergo, the kind of moral and political judgment they will exercise ought to be of concern. Ergo, if nominees will make moral and political judgments diametrically opposed to the interests and values of one party or the other, those nominees ought to be opposed. The only thing I find remarkable is not that Senator Schumer holds the line on a few of the right-wing kooks like Brown and Estrada, but that he and the Democrats don't do it more often. But they're cowards, alas.
UPDATE: Eric Muller has additional information about why Scalia encountered so little opposition.
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