The Feinstein Standard

Friday, September 30, 2005

The Feinstein Standard

Regarding the Senate vote yesterday to confirm John Roberts to the U.S. Supreme Court, the Washington Post reports:
"The pivotal appointment is the next one," said Sen. Dianne Feinstein (D-Calif.), who opposed Roberts. "The comparison obviously is with O'Connor," she said, in contrast to the reliably conservative Rehnquist.
Be careful, senator. This kind of standard may serve Democrats' short-term interests, but, in the long run, it could come back to haunt liberals.

Suppose a Democrat is in the White House 15 to 20 years from now (the very notion may seem remote, but indulge me for just a moment). If Clarence Thomas or Antonin Scalia were to step down from the court, could conservative senators point to the Feinstein standard and insist that the next nominee should have a judicial or constitutional philosophy comparatively similar to Scalia and Thomas?

Even if there weren't long-term political pitfalls to the Feinstein standard, I have a hard time seeing the intellectual rationale for insisting that a new justice must reflect the views of the justice he or she is replacing.

If Feinstein believes Bush's next high court nominee holds views that would unduly curtail civil rights, the right of privacy, and other individual rights, then she can (and she should) vote against this nominee. But don't claim justification by pointing to Sandra Day O'Connor as an appropriate template for the new nominee.

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