Perhaps realizing that their ahistorical and inaccurate laments over the death of the blue slip tradition last week were ineffective, during today's Senate Judiciary Committee meeting, Democrats returned to attacking President Trump's judicial nominees' qualifications. Today is the 64th anniversary of Brown v. Board of Education of Topeka, so the Democrats chose that as their preferred mode of attack.
Texas Senator and Majority Whip John Cornyn identified the root of their weak arguments - justification for their blind opposition to all of President Trump's nominees (beginning at 50:00):
I agree with Senator Kennedy that many of the nominees have become overly cautious and unwilling to discuss substantive legal arguments that would be entirely appropriate to ask about. But I understand why they've become so cautious. Because a comment made in a political campaign like Mr. Truncale or by Wendy Vitter as sort of a throwaway line when she recognized the binding nature of the Brown decision -- all these are used as excuses and fodder to oppose, uniformly almost, the President's nominees. And so, perhaps they have become overly cautious and unwilling to have a fulsome discussion. If in fact this were what I would call [an] unbiased forum for discussion of these issues, I think you would find a different sort of outcome.
But the idea that the witnesses somehow don't recognize the binding nature of Brown v. Board of Education is ludicrous. It's a phony, made-up issue. Everybody recognizes thatBrown v. Board of Education as being binding precedent of the United States Supreme Court. So the idea that somehow these witnesses are unwilling to commit to it or agree to it because of their concern about their ethical obligations and to suggest that that implies that somehow they would not apply it as the binding precedent of the United States Supreme Court is a ruse. It's a made-up issue.
So, Mr. Oldham is too young to be confirmed to the United States Court of Appeals to the Fifth Circuit. He's 39 years old. And I guess I don't know what age limit our Democratic colleagues would consider people eligible for the Court of Appeals. It sounds like some form of age discrimination to me, to say arbitrarily if you're 39 years old, you're too young. Notwithstanding his incredible academic and legal background, which is really impressive. And then the suggestion that Mr. Oldham is somehow disqualified because he has represented, zealously represented, his client in court and to somehow say that because he's an advocate, he must therefore share those views personally, when he said his personal views will not dictate his legal judgment -- those are two separate things -- I think again is really pretext for uniformly opposing this President's nominees.
We know that almost all of these are going to voted on on party line, and I guess there has to be some reason to object to these nominees. But the idea that somebody is too young, or disqualified because they represented a client in court and those views may be unpopular with our Democratic colleagues, or that somehow personal views are more important than your fidelity to the law, when in fact I think uniformly the nominees have said they would not impose their personal views but would enforce the law: this makes no sense to me.
Tom Jipping, who has newly joined the Heritage Foundation and National Review's Bench Memos after being Senator Orrin Hatch's nominations counsel for many years, reminded us in his first Bench Memos post that our entire system of the rule of law relies on judges interpreting the law without imposing their personal views:
Today, in the Judiciary Committee’s business meeting, Chairman Charles Grassley addressed efforts to force judicial nominees to express personal views on issues or cases in their confirmation hearings. . . . Grassley was correct to oppose this approach. The push for nominees to express personal views undermines not only the impartiality on which the legitimacy of our judicial system depends, but the confidence of our fellow citizens in that system. . . .
America’s Founders established a system of government designed to maximize ordered liberty by limiting government. . . . And the judiciary, as part of that system, is also designed to work in a particular way. Federal judges interpret and apply the law, such as statutes and the Constitution, as it is and applying it to decide individual cases. They must do both tasks, interpretation and application, impartially by eliminating their personal views as much as possible.
Thanks to Chairman Grassley, Senator Cornyn, and many other Republican senators on the committee who strongly defended the nominees against the Democrats "phony, made-up" objections (see Utah Senator Mike Lee's statement beginning at 1:05:28).