On May 22, Senate Minority Leader Mitch McConnell gave a speech about judicial nominations in the U.S. Senate, calling out Senator Harry Reid for breaking his commitment to get judicial nominees a vote on the Senate floor. McConnell said there would be consequences, and on June 4 he proved it by slamming on the brakes in the Senate.
With the California Supreme Court’s gay marriage ruling a couple weeks ago and the Second Amendment case about to be decided by the U.S. Supreme Court, the issue of judicial nominations could heat up. If so, it could deliver some swing states in the presidential election and in close Senate races.
The Constitution gives the president the authority to nominate judges, and the Senate the power to confirm them. The Founding Fathers made it clear that the president’s appointment power was broad and the Senate’s role was limited. The Senate was only to ensure that the president’s nominee was a person of fit character. As Alexander Hamilton explained in The Federalist No. 76, the Senate should rarely withhold approval and only when there are extreme reasons, such as the nomination of an unqualified friend or family member.
For 200 years that was usually the way it worked. The Senate only denied confirmation if there were problems with a nominee’s education, experience, or integrity. Otherwise nominees were confirmed regardless of their political beliefs. That’s why conservative Antonin Scalia was confirmed to the Supreme Court 98-0, and liberal Ruth Bader Ginsburg was confirmed 96-3. They were top graduates from top law schools, with stellar careers as federal appellate judges and good character.
But things have gone badly astray. Throughout President Bush’s tenure, Senate Democrats have increasingly slowed or stopped nominations not for reasons of qualification or character but because they suspected the nominee was conservative. It started in 2001 when Judge Charles Pickering was nominated to the Fifth Circuit. Judge Pickering had support from diverse groups in Mississippi, including that of local black civil rights groups for Pickering’s stand against the Klu Klux Klan. The accusation against him? That he was racist. The real reason for the opposition was that Pickering is an evangelical Christian.
Some good nominees, like William Pryor, Priscilla Owen and Brett Kavanaugh were eventually confirmed. Others, like Miguel Estrada, were not.
This unforgivable obstructionism continues today.
Sandy Froman is the immediate past president of the National Rifle Association of America, only the second woman and the first Jewish American to hold that office in the 136-year history of the NRA. The views expressed are her own and not that of any organization.
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