At "Bench Memos," National Review Online's blog dedicated to the judicial confirmation issue, Ed Whelan gives a summary of the views of Justice Ruth Bader Ginburg, presented as a hypothetical to illustrate a point about how Republicans would handle the nomination of a judge on the extreme left:

Imagine, if you will, that a Democrat President nominated a judge whose constitutional and policy views were, by any measure, on the extreme left fringes of American society.

Let’s assume, for example, that this nominee had expressed strong sympathy for the position that there is a constitutional right to prostitution as well as a constitutional right to polygamy.

Let’s say, further, that he had attacked the Boy Scouts and the Girl Scouts as organizations that perpetuate stereotyped sex roles and that he had proposed abolishing Mother’s Day and Father’s Day and replacing them with a single androgynous Parent’s Day.

And, to get really absurd, let’s add that he had called for an end to single-sex prisons on the theory that if male prisoners are going to return to a community in which men and women function as equal partners, prison is just the place for them to get prepared to deal with women.

Let’s further posit that this nominee had opined that a manifest imbalance in the racial composition of an employer’s work force justified court-ordered quotas even in the absence of any intentional discrimination on the part of the employer. But then, lo and behold, to make this nominee even more of a parody of an out-of-touch leftist, let’s say it was discovered that while operating his own office for over a decade in a city that was majority-black, this nominee had never had a single black person among his more than 50 hires.

Imagine, in sum, a nominee whose record is indisputably extreme and who could be expected to use his judicial role to impose those views on mainstream America. Surely such a person would never be nominated to an appellate court. Surely no Senate Democrat would support someone with such extreme views. And surely Senate Republicans, rather than deferring to the nominating power of the Democrat President, would pull out all stops—filibuster and everything—to stop such a nominee.

Well, not quite. The hypothetical nominee I have just described is, in every particular except his sex, Ruth Bader Ginsburg at the time she was nominated to the Supreme Court in 1993.

President Clinton nominated Ruth Bader Ginsburg on June 22, 1993. A mere six weeks later, on August 3, 1993, the Senate confirmed her nomination by a 96-3 vote.

The word "extremist" is being thrown around with little care these days by the Democrats in reference to President Bush's nominees, but the word fits Ginsburg.

The question arises, why did all but three Senators vote for such a radical nominee? It seems to us that it is much more important to consider the judicial philosophy of a nominee than her professional qualifications. Of course the Constitution doesn't even contain any professional requirements for judges. One need not have a law degree or any experience practicing law. We're not suggesting that non-lawyers be nominated, just that other criteria are important.

Any nominee who shows the disregard for the written words of the Constitution that Ginsburg does deserves - no, demands - a "no" vote from any Senator that values those written words.

The task that remains then is to convince a majority of the American people that "the rule of law" requires the conservative view of adhering to the written laws, including the written Constitution, not the liberal view of a "living breathing document" that means whatever people want it to mean at any given moment.

It appears the Republicans have in the past shown far too much deference to Democratic nominees, or too much weight to a nominee's resumé and too little to her extremist views.

In some narrow sense we agree with Senator Schumer here. He has argued that the ideology of judicial nominees should be considered, and with that we agree. Senator Schumer is just wrong on the merits of the ideology he supports. The Constitution exists to limit and define the role of the federal government. It is precisely those limits that those, like Schumer and Ginsburg, who espouse a "living breathing" Constitution oppose.

People often argue that we need to maintain "balance" on the court. Certainly people with differing views about particular issues can be good judges. For example, Justices Scalia and Thomas sometimes disagree on particular cases. But we don't need a balance between judges who want to follow the written law and those who want to ignore or evade it.

Perhaps some law professors or constitutional scholars will weigh in on the proper scope of the Senate's "advice and consent" role. Or anyone else, for that matter. Like the Constitution, we don't require a law degree here.

Update: Ed Whelan has an earlier post that addressed the use of judicial philosophy in Senators' evaluation of judicial nominees here.