I would be interested to hear what others have to say regarding the proper (as opposed to constitutionally required) method for the appointment of justices to the Supreme Court.
Until the last few years, for instance, it was the tradition that senators would defer to the president on the basis of the jurisprudential philosophy of the nominee. Justices Ginsburg and Breyer got votes from most Republicans. Justice Thomas was approved by a Democrat-controlled Senate and such opposition as he got was largely premised on his fitness, though his views did receive considerable criticism. At the ACS debate a couple of weeks ago, both Professors Tushnet and Barnett agreed that the Republican votes in favor of Clinton's nominees was an error.
Some claim that this deference is constitutional in nature: the Congress is bound to allow the president to select amongst qualified candidates. To make this more clear, and in the context of the filibustering of judicial nominations, a Senate rule which required a president to first consult with senators before advice and consent would, according to this thinking, be unconstitutional. To convert senatorial votes on nominees into policy approval would subvert the president's constitutional powers.
Isn't this argument weaker in relation to judges than it is to subordinate executive officials, such as the Secretary of State? That is, if the Republican Senate had forced Clinton to accept a Secretary of State to its liking, that action would have been unconstitutional (Madeleine Albright was certainly not liked by Republicans). Given that the Supreme Court is the head of another coordinate power, shouldn't the presidential power be weaker and the duty of the Senate to confirm according to ITS best judgment stronger?
Or is the tradition correct and the more apparent check of Congress on the Judiciary, the Exceptions Clause, is the appropriate vehicle for legislative power?
If the Democrats do vote largely in favor of Roberts, I think they will strengthen the hand of the next Democratic president, a political consideration. That this consideration seems to be playing so little role in the matter may reflect their honest assessment of their own PRESIDENTIAL prospects...