Why All The Fuss Over Judicial Nominations?
By Charles Cole (11/03/03)
“At times one remains faithful to a cause only because its opponents do not cease to be insipid.” Friedrich Neitzsche
Apparently the Republicans in the U.S. Senate haven’t yet internalized the importance of the unconscionable and incessant Democrat filibusters of President Bush’s judicial nominations. Columnist Robert Novak writes that several Republican Senators are hoping the issue will just go away, so that they can “get on with their own agendas”.
Novak reports that Senate Majority Leader Frist is about to launch a three-phase effort to combat this heretofore very successful Democrat strategy. One hopes that Senator Frist will be successful in this effort, but the track record to date is not promising.
Senate Democrats clearly believe that judicial appointments – especially to the various U.S. Circuit appellate courts – are crucial to the long term success of their main agenda, i.e. to remain in office by catering to their special interests: the trial lawyers, the teachers’ unions, left wing minority advocates (e.g. MEChA), ultra liberal university professors, environmentalist extremists and the entire gamut of other “progressive” activist groups. What these organizations cannot get through the front door of legislation, they seek to sneak in the back door through judicial intervention. And the latter can only be achieved if “progressive judges” are appointed to the federal bench.
The Democrats also fully understand the relative importance of the circuit courts, as evidenced by their application of the filibuster exclusively to nominees to serve on these courts. Federal district courts are trial courts and their rulings are subject to review by circuit courts of appeal. This explains the vehemence of the objection to strict constructionist judges such as Priscilla Owen, William Pryor, Charles Pickering, Carolyn Kuhl, and Janice Rogers Brown. Such judges, if appointed to federal circuit appellate courts, can be expected to subject extremist, left wing judicial rulings and decisions to rigorous legal analysis – a process which often results in nonsensical rulings being reversed and remanded to the lower courts.
When President Clinton’s judicial nominees were being subjected to rigid scrutiny and comprehensive debate in the U.S. Senate, many of those currently blocking President Bush’s nominees took to the floor of the Senate to aver that filibustering judicial nominations would be wrong. These same Democrat Senators (Daschle, Leahy, Feinstein, et al) claimed that they could never support such a tactic. The fact that they are now engaging in the very practice which they themselves had described (for the record) as deplorable and “wrong” is a clear indication of the level of importance which Democrats in the Senate attach to federal judicial nominations. Were this not a vitally important issue, it is highly unlikely that they would risk having their obvious duplicity and hypocrisy exposed in full public view.
The Senate Democrats have also done their homework. They know full well that the current cadre of sitting circuit court judges contains a large number of aging justices, including fifty four who were appointed by Presidents Johnson, Nixon, Ford, and Carter. Another seventy five had been elevated to the various circuit courts by President Reagan. Thus, should President Bush win a second term in office, the chances are good that a large number of these judges will retire before 2009. This has required the Democrats to develop a “failsafe” mechanism and they have found what is to date just such a vehicle in the archaic filibuster process.
Hopefully Senator Frist will find a way to end this outrage. However, should the Senate Republicans not prevail in this fight, the issue is simply too important to the future of the country to simply file away and forget. In fact, it may require President Bush to finally take an active role in this matter. One vehicle which presidents have used in the past is the so-called “recess appointment”. When Congress goes into an extended period of recess (usually during major holidays), the president can appoint whomever he chooses to fill judicial vacancies and, although these appointments are temporary in nature, they might spotlight the current problem for the country, as well as putting (albeit temporarily) some conservative, strict constructionists on the federal bench.
Since the Democrats have been so recalcitrant in this matter, perhaps President Bush could get their attention and bring them to the bargaining table using recess appointments to fill the important vacancies now languishing in limbo. He could appoint Bob Barr, Jim Rogan, Asa Hutchinson, and Bill McCollum – all attorneys and former members of the House Judiciary Committee – to four of the current circuit court vacancies. If Senate Democrats fail to come to the table, the president could appoint Judge Roy Moore, now without a position in Alabama, to another vacancy. Should the Democrats remain unconvinced, the president could consider putting Judge Robert Bork back on the Court of Appeals for the D.C. Circuit where he had served with distinction for six years.
The howl from the Democrat special interest groups would be deafening! This might, in turn, put sufficient pressure on those Democrat Senators up for reelection next year for them to deem the president’s current nominees as “qualified” after all. At least such moves would put the Democrats on notice that the president can no longer tolerate the current abuse of power. It would also energize Mr. Bush’s conservative base – something he must do if he hopes to win reelection in 2004.
If a matter is of crucial importance, as this issue certainly is, then it deserves serious measures to achieve success. Let us hope that the Senate Republicans and President Bush will begin to see the matter in this light and will take bold action to protect the constitution from judicial activists who would rewrite it to fit their social agendas.
(Printer friendly version) Email: Charles Cole
