A surprise from Ron Wyden

Much to my surprise, it seems Ron Wyden has been pushing aside the Kool-Aid recently. He was one of 78 votes in favor of John Roberts for Chief Justice of the United States.

In his floor comments, Wyden said:

I reject the suggestion that a Republican nominee is per se objectionable. A number of moderate justices nominated by Republican Presidents belie such a claim. The decision that each Senator must make should be based on the judicial nominee that is before the Senate, not the one that we wish were before us.

To put this into historical perspective, under the advice and consent responsibility assigned to the Senate, the President’s judicial nominees to the Supreme Court have traditionally been given a large degree of deference. For instance, in spite of the divisive national debates surrounding gays in the military, universal health care, Travelgate, Filegate and the Whitewater investigation, this deference translated into 96 votes for Justice Ginsburg and 87 votes for Justice Breyer when their nominations came to a vote before the Senate. And yet these are two of the most progressive voices in the over 200-year history of the high court.

I suspect there's a degree of scheming on Wyden's part. He knows that Roberts is replacing another conservative, so the balance of the court does not change in Republicans' favor. If President Bush nominates an equally-stellar nominee for Sandra Day O'Connor's seat and Wyden votes against that nominee, we'll know he's playing politics despite his claims otherwise:

Some of the policy watchdogs I respect the most, and agree with on so very many issues, have asked that I oppose Judge Roberts because he is not one of us; because he is too conservative; because he is young; because he may prove effective. “He is not who we would choose,” they say, and on that point, I am in full agreement.

Should the test to confirm a Chief Justice be, “He is not who we would choose?” I ask my friends to imagine the mess we will have left for our nation if the Senate uses this test and votes solely on the basis of a nominee’s political beliefs.

Friends who a year ago said, “We don’t want ideologues appointed to the Supreme Court,” now want John Roberts and the next nominee to show up at the witness table and submit to an ideological litmus test.

Here’s my message to those friends: a sword forged in ideology in 2005 can be used against a progressive nominee in 2009 with equal disregard for the Constitution and the individual.

Did you catch that last part? The part about disregarding the Constitution? That, to me, is a not-so-tacit acknowledgment that the Democrats' filibusters over the last few years and their insistence that a nominee make commitments about "continuing the march toward progress" are unconstitutional abuses of the Senate's Advise-and-Consent role.

In some ways, Wyden's comments about deference are amusing, considering he voted in favor of filibusters on numerous occasions. It's even more amusing considering the letter he sent me earlier this year, talking about how many of Bush's District Court nominees the Democrats approved (as if filibusters of Circuit Court nominees are perfectly acceptable if the lower court nominees are approved in high numbers).

Granted, none of those votes were for Supreme Court positions, but I fail to see how it's OK to play politics with a circuit court nominee and forswear such tactics with the highest court.

Nonetheless, I'll take a victory with Wyden where I can get it. On the next nomination, I'll be sure to remind him that the Senate approved Ginsburg and Breyer by overwhelming margins, even though Republicans had the numbers to filibuster if they wanted, and even though, by Wyden's own admission, they were "two of the most progressive voices in the over 200-year history of the high court" (translation: two of the most liberal SCOTUS nominees ever).

Using Wyden's admission, there should be no issue with approving a strong conservative for the next nomination, but I'll believe it when I see it.