Did Republican Senators Mean What They Said?

One of the key arguments made by Republican members of the US Senate regarding the nomination of Judge John Roberts, Jr. to be Chief Justice is one that I bought. It was composed of three main parts.

First, Republican senators said that there should be no ideological litmus test for membership on the Court; no advance understanding of how justices might rule on issues coming before them.

Furthermore, they said that it's only natural to expect that Presidents will nominate people to the judiciary who are broadly sympathetic to their views of the Constitution and the law. Elections are supposed to be about something and it would be both naive and unfair to expect Presidents to nominate persons they know to be out of sync with their understanding of the judicial branch.

Finally, it should be enough that the persons nominated to the Court by the President are qualified jurists, as Roberts clearly is.

But now, according to this report in the New York Times, Republican senators of both right and left wings are planning on breaking with this threefold argument. They're making noises about approaching the nominee the President offers to replace Justice Sandra Day O'Connor differently from the way they approached Roberts' nomination.

The right, represented by Sam Brownback of Kansas, evidently concerned that the non-committal answers given by Roberts mean that he could be more liberal than was initially thought to be, seems bent on applying a more conservative litmus test to the next presidential nomination to the Court.

Republican social liberals are indicating that they'll expect assurances from the next nominee that rulings like Roe v. Wade won't be overturned.

The reason for this flip flop by Republican senators? President Bush is in a weaker position post-Katrina and, as I've talked about here before, second term presidents are imbued with lame duck status early in this era of the perpetual presidential campaigning anyway. The President's capacity to get his way on a whole variety of subjects is waning.

But whatever the President's current position in national polls or however potential successors may be anxious to elbow him aside, it shouldn't invalidate the arguments the senators made about how to approach presidential nominations to the Court. Circumstances can alter cases, of course. But the only circumstance to change since Roberts was nominated is that President Bush's popularity has gone down.

Is that a sound basis on which to discharge their duty or to work at erasing unnecessary politicization of the federal judiciary? The answer to that question should be obvious.