The Right Coast

November 12, 2005
Supreme Court Balance
By Mike Rappaport

My friend, John Manning, has penned an op ed arguing against the view that Sam Alito should not be confirmed because he might alter the balance of the Supreme Court. Here is an excerpt:

As a matter of principle, to suggest that presidents should select nominees who will leave the court's ideological composition intact implies that the court's jurisprudence is always precisely where it should be - that nothing can ever be gained from a change in the perspective, experience or philosophy of any justice. Even more troubling still, the baseline for assessing "balance" at any given moment is almost entirely arbitrary. If today's balance differs from that of an earlier court, presumably past presidents and Senates already violated the balance principle when they selected and confirmed the members of the court that we now seek to preserve.

To maintain the ideological balance, must the president find someone who is liberal on the matters on which Justice O'Connor leans to the left, and conservative where she leans to the right? Since Senator Charles E. Schumer is one of the balance argument's most vocal proponents, he would presumably have to vote against the nomination of a justice who took a more generous view of federal power than does Justice O'Connor - even though he has repeatedly denounced the states' rights jurisprudence on which Justice O'Connor has so often taken the lead.
This is all a nice way of pointing out that Schumer's concern about balance is hypocritical and result oriented. But what else would we expect from Senator Schumer?