Whitehouse Plays The Blame Game

The Elena Kagan hearings were a formality. A chance for Senators to posture and for Kagan to avoid saying anything. Still, I was struck by the foolishness of Rhode Island Democrat Sheldon Whitehouse.

He had trouble with 5-4 decisions, and thought it was a good thing for the Court to shoot for unanimity (as in Brown v. Board Of Education) or at least votes that aren't so close (like the 7-2 Roe v. Wade). Needless to say, he blamed those partisan Republicans for polarizing the Court.

First, Justices see cases differently, so what are they supposed to do? The majority (and the minority, for that matter) tries to get as many votes as it can, but if the other side disagrees, that's it. Compromise is possible when you've got common ground, but you can't change the substance of your views, and who'd ask a Justice to do that? This is especially true on prominent, controversial cases. (In fact, there are plenty of unanimous decisions--it's when they hit the controversial issues that we get the polarization.)

It just happens that we've got five Justices who often lean "conservative" and four who often lean "liberal," so there it is. If one of those conservatives were replaced by a liberal, I wonder just how much Whitehouse would object to all the 5-4 opinions going his way. Back in the 50s they disagreed plenty, but the political splits were different and they had a broad enough consensus on certain civil rights issues that they could manage unanimity.

The most ridiculous thing is blaming this on conservatives. It takes two to tango. In fact, if Republican nominees voted in a bloc, then for the last generation or so Whitehouse would have gotten nothing but those 7-2 votes he longs for. Before Obama came to office, 12 of the last 14 Justices were nominated by Republicans, and yet somehow, year after year, we had all those 5-4 votes. Sounds like "conservatives" aren't so partisan after all.