The debate in Washington over who’s to blame for the slow pace in filling judicial vacancies (or whether the pace is even slow to begin with) reflects an assumption that is shared by both sides: that the Senate should generally defer to the President in the confirmation process.
In Sanford Levinson’s scattershot attack on what he calls our “imbecilic” Constitution, he relies on an admixture of demonstrably false empirical claims, sloppy history, and half-baked political theorizing. He begins by claiming that “critics across the spectrum call the American political system dysfunctional, even pathological. What they don’t mention, though, is the role of the Constitution itself in generating the pathology.” Mr. Levinson clearly hasn’t been to any Tea Party rallies over the last several years, where hundreds and sometimes thousands of people gather to express their displeasure at the state of our politics, yet proudly carry copies of the Constitution tucked under their arms. They have made the determination that the Constitution is the solution to our problem—certainly not the problem itself. For them—and for many others—the dysfunction we experience stems from the willful refusal on the part of politicians and judges to take the Constitution’s plain language seriously.