First, nowhere is that rule written. Second, the history of presidential practice -- Democrats should especially study FDR's sweeping alteration of the court's composition -- refutes the rule. Third, when in 1993 the Senate voted to confirm the very liberal Ruth Bader Ginsburg, former counsel to the American Civil Liberties Union, to the seat being vacated by the retirement of the conservative Byron White, 96 senators voted for her, including 25 Democrats still serving in the Senate. Including Reid. Including Pat Leahy, Ted Kennedy, Joe Biden, Dianne Feinstein, Herbert Kohl and Russ Feingold, all members of today's Judiciary Committee.
Reid urged the president to nominate Miers, whose withdrawal Reid says he laments. Now Reid deplores the Alito nomination because it was, Reid says, done without Democratic ``consultation.'' But it was during such consultation that, Reid says, he warned the president not to nominate Alito. So Reid's logic is that nothing counts as consultation unless it results in conformity to Democratic dictates.
When Reid endorsed Scalia for chief justice, he said: ``I disagree with many of the results that he arrives at, but his reason for arriving at those results are (sic) very hard to dispute.'' There you have, starkly and ingenuously confessed, the judicial philosophy -- if it can be dignified as such -- of Reid and like-minded Democrats: Regardless of constitutional reasoning that can be annoyingly hard to refute, we care only about results. How many thoughtful Democrats will wish to take their stand where Reid has planted that flag?
This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes -- ``results" -- they, like the result-oriented senators who confirm them, consider desirable? If so, in what sense does the Constitution still constitute the nation?
This is a debate the president, who needs a victory, should relish. Will it, as Democrats mournfully say, ``divide" the country? Yes. Debates about serious subjects do that. The real reason those Democrats are mournful is that they correctly suspect they are on the losing side of the divide.