The battle over judges continues

Hugh Hewitt
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Posted: Nov 20, 2006 11:28 AM

The destruction of the confirmation process for federal judges began with the nomination of Robert Bork to the United States Supreme Court and accelerated when Clarence Thomas was viciously attacked — but confirmed — in 1991.

As the first Bush presidency wound down, the Democrats went into an unprecedented slowdown in the processing of judicial nominees, and there were more than 50 (including John Roberts' first nomination to the Court of Appeals for the District of Columbia Circuit) that the Senate didn't act on in 1992.

Though the Republicans who controlled the Senate during the last six years of the Clinton administration refused to act on a handful of judicial nominees, they engaged in none of the nominee bashing that characterized the circuses that surrounded the Bork and Thomas confirmation hearings and floor debates.

Justices Ginsburg's and Breyer's confirmations were both handled in the appropriate fashion, and both nominees were easily confirmed.

Some GOP payback for the Democrats' conduct in 1992 did occur in the Clinton years, especially by then Sen. Jesse Helms, who refused all nominees for vacancies on the 4th Circuit Court of Appeals, historically allocated to North Carolina because he had seen his own candidate, Judge Terrence Boyle, blocked from a seat on the 4th Circuit during the first Bush presidency.

Sen. Patrick Leahy, incoming chairman of the Judiciary Committee, has argued that the Republicans blocked more than 60 of President Clinton's nominees to the lower courts. However, he inflates his numbers by including them in that a raft of nominees made so late in the year 2000 as to preclude even quick vetting.

Clearly, however, the GOP did engage in some payback for the refusal of Democrats in 1992 to act on the first President Bush's nominees. Although it would be better for the process if the Senate returned to the old tradition of keeping the confirmation open to judicial nominees whose paperwork and hearings are complete on routine schedules by midsummer in the fourth year of a presidency, absent a comprehensive settlement of the rules for nominees, we have to expect a shutdown of the process for appeals court nominees in early 2008.

The troubling news is that it may shut down even earlier, and indeed may have already been shut down.

As the GOP majority leaves town, it will leave behind a number of highly qualified nominees to the appeals bench who will not receive up-or-down votes. The vaunted "Gang of 14" deal not only prevented a settlement of this enormously important question of how the Constitution ought to operate, but these nominees would all have had their votes, and most, if not all, would have been confirmed. Much more important, though, is the fact that had the John McCain-led Gang not interfered with the GOP's majority's desire to move to a vote on the use of the filibuster with judicial nominees, a precedent would have been established that it is out of order to allow 40 senators to stop nominees from receiving a vote. Instead, McCain undercut the Senate's leadership. A few quality nominees were confirmed, "Judges Brown, Owen, Pryor and Kavanaugh among them but others were thrown under the bus. No precedent was set, and still the obstructionism has continued."

Boyle is still trapped in the Judiciary Committee. Many other exceptional nominees, including Peter Keisler — whom Majority Leader Bill Frist seemed to assure the public would receive a vote or his position on the D.C. Circuit Court of Appeals — will not get one. Incredibly, the GOP leaves the majority with two vacancies on that circuit, vacancies about which some in the GOP are indifferent about filling. The second most important court in the country is thus two additional conservative jurists short because of GOP fecklessness and infighting.

And some people wonder why there is anger in the Republican base and among its legal elites with the GOP's senate majority.

All of this may be changing. The Republicans may be getting serious about judges.

Soon-to-be-Minority Leader Mitch McConnell has indicated that the GOP's cooperation with Majority Leader Harry Reid will depend on the treatment of Bush's nominees.

An early test case will be Keisler, who is certain to be renominated. If McConnell makes the case repeatedly that the GOP's willingness to allow Democratic proposals to reach a vote will be tied to up-or-down votes on the floor, he will either get those votes or the Republicans will have a powerful issue on which to run in 2008.

Sen. Chuck Schumer announced last week that there will be no more Supreme Court justices in the mold of Chief Justice Roberts or Justice Samuel Alito. "Judges are the most important," he announced. "One more justice would have made it a 5-4 conservative, hard-right majority for a long time. That won't happen."

The categorization of four justices on the Supreme Court as "hard-right" is reckless and absurd, an obvious extension of Schumer's radical and relentless assault on the right of Americans to hold traditional originalist views of the Constitution and its intended operation.

Schumer is a master propagandist, and he never lets up in his effort to define terms in ways favorable to his radical legal agenda of delegitimizing the historical mainstream of American legal theory.

It is also apparent from Schumer's flat declaration that he has already resolved to block any Supreme Court nominee whom Bush sends forward.

If a vacancy does occur before midsummer 2008, there will be a very public battle for which the GOP and the president need even now to prepare for through the repeated return to the crucial historical precedent: No Supreme Court nominee in modern times who demanded a vote on the Senate floor has ever been denied an up-or-down vote by all 100 senators.

It is true that Justice Abe Fortas withdrew his nomination after a motion to end debate failed once. That was a test vote and was understood as a courtesy to the sitting justice, who had been nominated to become the chief justice after Earl Warren's retirement.

Had Fortas not withdrawn, he would have been defeated. There is thus no precedent for the sort of obstruction that Schumer has indicated is coming. Schumer is truly a radical, however, and he will not hesitate to try to complete the politicization of the federal courts.

McConnell has indicated that the Democrats will reap what they sow, and that a future Democratic president will inherit exactly the sort of treatment of his (or her) nominees that George W. Bush has received for his. The statesmanlike thing for Reid or Leahy to do would be to propose settling the rules by which these next two years will run. By doing so with the agreement of the GOP, an agreement that would carry forward as a precedent of the Senate.

Variations of such agreements have been around for years. They all provide for careful consideration of nominees and much debate, but they always include — where they should — up-or-down votes on nominees by the entire Senate, which is what the Constitution clearly anticipated.

A party confident of its ideas and the success of its future national candidates would run to secure such an agreement.

But the left is not confident and knows the narrowness of the Nov. 7's win, and the radical nature of its base.

The Senate Democrats will not switch from their obstruction, and McConnell and his colleagues must maintain their resolve as a result.

"The Gang of 14" forfeited not just the reputations of many fine men and women, it abandoned principle and the Constitution for political expedient.

Frist and McCain will see their presidential ambitions ruined in no small part because of the latter's authorship of the deal and the former's failure to stop it.

Expect the new leader of the Senate GOP to understand this, and the other would-be presidential candidates from among the Republicans — especially Sen. Sam Brownback if he runs, and Gov. Mitt Romney — to remind the GOP primary electorate over and over again how great was the defeat masked with the title "Gang of 14."