senate committee rejection of judicial candidates

David Bernstein DavidEBernstein at AOL.COM
Sun Mar 24 11:42:36 PST 2002

Nevertheless, the Senate has to choose a policy, and is obligated to try to
follow a coherent view of what it believes the Constitution requires.  This
admittedly has an air of unreality about it, since it's a rare event indeed
when Senators pay any attention to their constitutional obligations, and when
they do, it's even rarer for their views on the relevant constitutional
questions not to match their political/ideological views.  Witness the
Democrats who argued before the Gulf War that a declaration of war was
needed, and Republicans who made similar arguments about Yugoslovia.  And
while flag-burning split the conservatives and liberals on the Supreme Court,
it was basically party line in Congress. Not to mention the debate over
Clinton's impeachment!

Mark, Rich, et. al, make interesting arguments, but in practice it has become
the case that the judiciary committee, and holds and whatnot, do not reflect
the Senate as a whole delegating agents for itself, but reflect the most
ideological members of each party attempting to prevent the Senate as a whole
from consenting to nominations that they oppose.

In a message dated 3/24/2002 1:11:11 AM Eastern Standard Time,
tushnet at LAW.GEORGETOWN.EDU writes:

> I think it
> simply impossible to say whether his proposed policy is "more" or "less"
> in keeping with the constitutional design, which includes more than the
> performance of the advise and consent function.

David E. Bernstein
Associate Professor
George Mason University
School of Law
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