Judging judicial nomination process
11/4/2002 12:00:00 AM - Jonah Goldberg
In what is probably an election ploy, President Bush has proposed a way for the Senate to get past its logjam on nominating judges. He wants the Senate to commit to a definite timetable for the nomination process, and he wants it to abandon the practice of killing nominations by just ignoring them entirely. Bush's most radical suggestion is that the full Senate would promise to hold a vote on a nominee within six months of being named, regardless of whether or not the Judiciary Committee had voted on him.
Ralph G. Neas, president of the hyperliberal group with the fascist-sounding name, People for the American Way, popped a gasket at the idea, saying it "is contrary to about 220 years of Senate history and Senate precedent."
Neas is right, of course. But what he leaves out is the fact that the situation we're dealing with today is already unprecedented: Judges today are vastly more powerful and unchecked than the founders ever dreamed. In fact, they're powerful than anyone would have imagined a quarter century ago.
And that's why I have so much trouble with the whining from Republicans and Democrats alike over the judicial confirmation process. When Republican judges are up for approval, Democrats wallow in hypocrisy, dishonesty and downright nastiness. When Democratic judges are being considered, Republicans do the same thing. And, all the while, each side pounds its spoon on its highchair as if the other side is being uniquely unfair.
Meanwhile, the media writes about all of this as if it's just "partisan politics," by which they mean it's a bunch of politicians being petty and selfishly concerned about their own careers rather than the public interest. But that's just not the case.
Republican and Democrat senators are being entirely rational when they try to block
judges they disagree with. Oh sure, the arguments they use are often full of inconsistency and absurdity -like when Chuck Schumer, D-N.Y., decries litmus tests while nakedly applying them -but their intentions make sense.
Imagine if martial law were declared in the United States and the secretary of defense became something of a de facto American Caesar, second only to the president in authority and capable of defying state and even constitutional laws. If he deemed it necessary, he could seize property, round up people at a whim and leave the toilet seat up without apology. And imagine if, for some bizarre reason, the national media served as a cheerleading squad for him, never questioning his authority. Now think about how fierce the confirmation battles in the Senate would be over the next secretary of defense.
Well, the situation with judges is similar. They have the unquestioned authority to do pretty much anything they want. In reality, the only government institution with the power to overturn a federal court's decision is a higher-ranking federal court. Judges can and do run school districts, rewrite election laws (think Florida, New Jersey, Missouri and coming soon Minnesota) and repeal laws that have been considered constitutional for decades, if not centuries. They indulge their petty biases by repealing everything from the death penalty to the Pledge of Allegiance with the arrogance and impunity of a medieval monarch. This was not, needless to say, what the founders had in mind.
It only makes sense, given the stakes and the power of judges that liberal and conservative interest groups would put so much pressure on senators when it comes to judges. Once a judge is in, he's in. A wayward senator or representative can be defeated at the polls. He can be lobbied. He can be pressured by other senators. You can even give him a wad of money or a nice fruit basket. You can't do any of that with a judge. With judges, you only get one shot at influencing what they'll do from the bench and that's during the confirmation process. So, it's no wonder that confirmation battles have become so ugly in near perfect tandem with the rise of judicial activism.
Now, I personally blame liberals for fighting to make judges so powerful in the first place. Frustrated that they couldn't win everything they wanted in the democratic process, they decided to work their agendas in the courts, the least democratic of our public institutions.
Conservatives deserve some smacking around too though, since they now look much more favorably on judicial activism, wanting the federal government to override state laws on such issues as assisted suicide, to name just one of many examples. Some conservatives argue that since the liberals got us into this predicament we might as well fight on their terms.
There may be some validity to this argument, but by deciding to fight fire with fire, the Republicans all but guarantee that judges will only get more powerful and the "partisan bickering" will only get worse for the rest of our lives and beyond.