Orin Kerr at the Volokh Conspiracy (via the New York Times) cynically predicts some reversals of position by both Democrats and Republicans in the coming months:
1) Republicans Must Now Oppose Executive Power; Democrats Must Be In Favor Of It. In the last few years, Republicans have been the defenders of executive power: A muscular executive has been needed to fight the war on terror. On the other hand, Democrats have opposed a strong executive on the ground that it threatens the rule of law. Please note that these arguments must now switch. Republicans must now talk of the dangers of executive power; Democrats must now speak of how a strong and agile executive branch is necessary to a modern democracy.
2) Republicans Must Now Oppose Judicial Confirmations; Democrats Must Be In Favor. In the last few years, Republicans wanted an up‐or‐down vote on judicial nominees; one of their leading blogs on the judicial confirmations was ConfirmThem.com. On the other hand, Democrats focused on the importance of carefully evaluating judicial candidates. Please note that these arguments must now switch, too. Republicans should now visit RejectThem.com (still an available domain name, btw — won’t be for long!), and Democrats should emphasize the need for a quick up or down vote.
3) Republicans Must Now Favor Legislative Oversight; Democrats Must Now Oppose It. You get the point by now. Yup, everyone has to switch sides on this one, too. If we all stick to the script, in 6 months the old arguments of the Bush era will be long forgotten. (Oh, and extra credit to those who charge the other side with hypocrisy for changing sides without noting that they have changed sides, too.)
Well, he might be right. And we may also see Republicans once again waxing eloquent about how the filibuster protects minority rights and Democrats railing against its obstructionism. But I’ll note that here at the Cato Institute we try to be nonpartisan. I think we always favor due consideration of judicial nominations, followed by confirmation of those who properly understand the Constitution and its limits on power. We’ve criticized President Clinton’s abuse of executive power and President Bush’s — and the general problem. We’ve called for congressional oversight when Republicans were in the White House and when Democrats were.
We hope that the new president and the 111th Congress will restore civil liberties and checks and balances. If they don’t, Cato scholars will point that out.