Out of order

The blogosphere has been buzzing after the slew of extremist decrees handed down by the Supreme Court these last few days, which really started with Gonzalez v. Carhart, putting a constitutional seal of approval on the idiocy of the Partial-Birth Abortion Act back in April. Today's theme is a little bit of I-told-you-so Monday morning quarterbacking. Or as TalkLeft refers to E.J. Dionne's column today, "closing the barn door after the horse has gotten out."

Dionne's aspirational column calls on the Democratic refuse to hold hearings on every judicial nominee they weren't consulted on.

Just say no.

The Senate's Democratic majority -- joined by all Republicans who purport to be moderate -- must tell President Bush that this will be their answer to any controversial nominee to the Supreme Court or the appellate courts.

The Senate should refuse even to hold hearings on Bush's next Supreme Court choice, should a vacancy occur, unless the president reaches agreement with the Senate majority on a mutually acceptable list of nominees.

Which is great, but it wouldn't have worked out when Alito was nominated and the Senate was split down the middle at 49-49. Democrats could have filibustered however, and they probably should have.

Slate has a similar, if more obnoxious, article by Emily Bazelon, pointing the finger at every liberal who defended the Roberts nomination.

And yet some liberal and moderate lawyers and academics didn't predict this at all. These members of the legal literati urged Roberts' nomination, promising that he would be a model of restraint and principle and modesty. Why did they think that then? And how do their arguments on his behalf look now?

Dionne and Bazelon, and the hullabaloo on the blogosphere about the decisions bring up a larger issue. Our judicial confirmation process, even on a procedural level, begs to be politicized. I'm talking specifically about requiring only a simple majority to confirm a nominee.

A simple majority means that the party in the White House, if they don't have a majority in the Senate, bully a couple of weak members from the opposite party and get whatever kooky judicial nominee they want confirmed. This is the Alito scenario.

European countries with constitutional courts have solved this problem by requiring that most judges be elected by a super majority. By requiring a larger majority of votes, the Europeans have ensured that minority parties have a greater say in the makeup of their constitutional courts, and have kept controversial or extremist judges off it. It appears to work. Admittedly, they have implemented other policies that help depoliticize the courts as well, like reducing the amount of dissents or keeping them anonymous, and having the judges serve limited terms.

There's nothing keeping the Senate from adopting this system. Even if the opposition party was in the minority, they should filibuster every single nominee the administration refuses to seek consensus on. That would force a party that doesn't have a 60-vote majority in the Senate to work with the minority party.

That still doesn't address the problem of Roberts. And maybe this vindicates Emily Bazelon, but there might not be a quick fix for Roberts, at least not procedurally. Maybe Bazelon's shame system's all we got.