Monday, 16 July 2018 01:20

Dershowitz: SCOTUS Confirmation Process Has Gotten Out Of Hand

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Authored by Alan Dershowitz via The Gatestone Institute,

The framers of our constitution would be turning over in their graves if they could see what happened to their words "with the advice and consent of the senate."

Now senators neither advise nor consent to Supreme Court nominations. They politicize, delay, demonize, obscure, fabricate and discredit what should be a non-partisan process of assuring that the most qualified lawyers serve on our highest court. Instead we have come to expect votes that are cast largely along party lines.

It was not always what it has now become. Even in the recent past, highly qualified but controversial nominees -- such as Antonin Scalia and Ruth Bader Ginsberg -- were confirmed with hardly any dissents. No more.

Supreme Court nominee Brett Kavanaugh. Some Democrats showed their disdain for the process by opposing President Trump's pick even before it was made. (Photo by Alex Edelman/Getty Images)

There is enough blame to go around.

Republicans point to the Bork rejection (which resulted in the Kennedy nomination) and the Clarence Thomas "high-tech lynching."

Democrats point to the Republican refusal even to consider former President Barack Obama's nomination of the highly qualified and centrist Merrick Garland. They also point to the fact that President Trump has "outsourced the selection process to the Federalist Society."

Whoever is to blame, the real victims are the American people who have been denied the constitutional protection of a legitimate confirmation process.

Focusing on the current confirmation battle over Brett Kavanaugh, some Democrats showed their disdain for the process by carrying signs opposing President Trump's nominee even before the nomination was made. They left the name blank and filled it in only after the President nominated Judge Kavanaugh.Others have taken the view that they would never confirm any nominee whose name was on the list provided by the Federalist Society.

A story from the past is worth recalling. When the great Justice Oliver Wendell Holmes retired, President Herbert Hoover asked his Attorney General to supply him a list of ten names to fill the seat of this great justice. The list contained nine Republican names, but at the bottom was the name of one Democrat -- a great New York judge named Benjamin Cardozo. When Hoover saw the list, he reportedly said to his Attorney General, "It's a great list but you have it upside down. Cardozo's name should be on the top because he is the most distinguished sitting judge in the US." The Attorney General reportedly responded that Cardozo was a Democrat, a Jew (there was already one Jew on the Supreme Court, Louis Brandeis) and a New Yorker and his appointment would not serve the political interest of the president or his party. But Hoover nominated Cardozo who served with distinction on the High Court.

Today such a nomination would be unthinkable. Generally, presidents...

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