As prescient as the framers of the Constitution were, they apparently didn’t anticipate the wholesale obstruction of the president’s judicial appointment power by a highly partisan Senate majority. The reason for their confidence is instructive, and Republicans should learn from it.
To be sure, they recognized the potential for abuse by the Senate of its advice and consent power. They even imagined that rank partisanship might play a role. But they thought the Senate’s accountability to the electorate would deter abuse. In his Commentaries on the Constitution, Justice Joseph Story confirmed all of these points.
There may be cases, said Story, where the Senate would reject suitable ("absolutely unexceptionable") appointees "from party motives, from a spirit of opposition, and even from the motives of a more private nature ... But such occurrences will be rare." Why? Because "there will be a responsibility to public opinion for a rejection, which will overcome all private wishes."
Implicit in this is the framers’ conviction that the Senate should not reject qualified nominees for political or personal reasons. Alexander Hamilton, in Federalist No. 76, made this very point quite expressly when explaining the reasons for the Senate’s advice and consent role in the first place. "It would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to preventing the appointment of unfit characters ... "
Justice Story made the same point: "they may withhold their advice and consent from any candidate who, in their judgment, does not possess due qualifications for office." You see, there is no mistaking it: The framers intended to ensure the appointment of qualified judges, not those whose political views were acceptable to the Senate majority.
So it is clear that the framers did not mean to confer on the Senate co-equal appointment power with the president. But that doesn’t matter to the Senator Daschle and Company.
Daschle, on the Sunday shows, made it clear that unless the Judiciary Committee "reports him out of committee," President Bush’s nomination of Judge Pickering to the 5th Circuit Court of Appeals will not make it to the floor of the Senate for a vote.
Note that Daschle makes no apologies for this, because Senator Dianne Feinstein, to whom he refers as "about as moderate a Democrat as you’ll ever find," has "looked at all these facts" and is opposed to Judge Pickering’s confirmation.
The Democratic leadership is not alone. The entire liberal establishment has essentially endorsed the rank politicization of the judicial nomination process.
The New York Times, in a strong editorial urging the Judiciary Committee to reject Judge Pickering’s nomination, admitted that Pickering was not a racist, contrary to the claims of many opposing him. But to the Times there are plenty of other sins to justify his rejection. Do these sins have anything to do with his qualifications or suitability for the position? No, other than some trumped up ethical complaints against the judge (and a bogus claim about his record in employment discrimination cases) to which the Times’ editors pay lip service for cover.
The bottom line is that Pickering is a political conservative and fails the abortion litmus test. "He was a driving force behind the Republicans’ decision to put a plank in their 1976 party platform calling for an anti-abortion amendment to the Constitution." This unpardonable puts him "well outside the mainstream on issues of reproductive choice."
The clincher is in the closing sentence. "If President Bush is committed to speeding up confirmations, he should name men and women who have distinguished records and do not have the hard-right views and ethical problems that Mr. Pickering does."
But he does have a distinguished record, as witnessed by the liberal American Bar Association’s finding that he is qualified and the fact that the Senate voted unanimously to confirm his appointment to the Federal District Court a mere decade ago.
Understand what’s at stake here. "Hard-right" is code for "mainstream conservative." This is no exaggeration. As long as the Democrats control the Senate (and the Times has anything to say about it) mainstream conservative judges will first be eviscerated, then rejected.
The Democrats have never been held accountable for their usurpation of the president’s appointment power and the systematic character assassination "Borking" of politically unacceptable judicial nominees. If anything, they have been emboldened by the Republicans’ feckless response.
Until Republicans get in the fight, they will be making fools of the framers by allowing the abject nullification of the President’s appointment power by the anti-constitutionalists.