ADVISE AND (MAYBE) CONSENT

Apparently Michael McConnell’s nomination as a federal appellate judge will be confirmed. All my law professor friends seem to think that’s the right outcome, and McConnell’s early-stated opposition to the result in Bush v. Gore suggests to me that he can’t be all bad. I think it’s both good morals and good politics for the Senate Democrats to be selective in trashing — oops! I mean considering — Bush judicial nominees. [Look here for some cross-talk on this from the liberal perspective.]

The partisan slanging match over judicial confirmations shows no sign of abating. The Republicans, having routinely denied Clinton nominees even the courtesty of hearings, are outraged — outraged! — that the Democrats are holding hearings, voting nominations down in committee, and then not sending them to the floor where Zell Miller can turn his coat and move them through. As I say, I think the McConnell confirmation will be the right result. But I also think that it ought to put to rest some of the more hysterical complaints about the Senate Democrats’ fairness. Because McConnell had opened himself up to hostile fire, if anyone had been in the mood for it.

Consider, for example, an article McConnell wrote for First Things. Depending on your view, it will appear either as a carefully nuanced, or as a disgracefully wishy-washy, account of an act of judicial lawlessness. I can see it in both lights:

Breaking the Law, Bending the Law

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com