Advice and consent of slash and burn

Posted: Jun 23, 2001 12:00 AM
It is becoming increasingly clear that conservative fears that the recent power shift in the Senate would have profound consequences, especially in judicial appointments, were well-founded. National Review Online’s Byron York reports that Democrats in the Senate Judiciary Committee are preparing for a series of hearings concerning the judicial-confirmation process. Don’t be fooled. While packaged as high-minded inquiries, their real purpose is to lay the groundwork for rejecting judicial nominees on the basis of their conservative ideology alone. On June 26, Democratic Senator Chuck Schumer, the new chairman of the committee responsible for screening federal judicial appointments, will conduct the first hearing, "Should Ideology Matter? Judicial Nominations 2001." Then next month, new Senate Judiciary Committee Chairman Patrick Leahy will begin hearings on the Rehnquist Court, federal jurisprudence and conservative judicial activism. Hearings on conservative judicial activism? That’s too much. York tells us that "the Schumer session will establish that it is acceptable to oppose nominees solely on ideological grounds, and the Leahy hearing will suggest that Bush’s nominees hold views that are dangerously out of touch with those of most Americans." How valid are these twin premises? Let’s take a look: Article II, Section 2 of the Constitution vests power in the president to appoint federal judges, subject to the Senate’s advice and consent. How much power did the Framers intend to confer upon the Senate over these appointments? It is clear that the Senate’s power is not coequal with the president’s, because only the president has the power to nominate. The Senate can only accept or reject his nominees; it cannot substitute nominees of its own. But on what basis may the Senate refuse to confirm the president’s nominees? Alexander Hamilton, in Federalist No. 76, wrote, "To what purpose then require the cooperation of the Senate? ... It would be an excellent check upon the spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." You see, there’s nothing mentioned about partisanship or ideology. The Framers were trying to avoid cronyism and the appointment of unfit characters that the president might be tempted to install primarily for personal or familial reasons. Even Democrats didn’t used to take the absurd position that nominees could be resisted on the basis of their ideology alone -- otherwise, for example, they wouldn’t have had to fabricate stories against Clarence Thomas bearing on his character and fitness. But that was about a decade ago. Today it’s different. The Democratic leadership is now openly engaged in a war against Republicans, especially conservative ones. They mean to eradicate this evil known as conservatism, and the judiciary is a great place to start -- given their manifest difficulties at the ballot box. This brings us to consideration of the second premise. What about Leahy’s assertion that most of Bush’s nominees hold views that are dangerously out of touch with those of most Americans? Answer: It is dangerously out of touch with reality. Also, it’s significantly ironic that Democrats are openly opposing nominees on ideological grounds. They are the ones who initiated the practice of legislating ideologically based policy from the bench. Besides, don’t most political commentators agree that presently, at least, the nation is almost evenly divided along ideological lines? Haven’t we all been hearing about the red states versus the blue states? The two Americas? But Schumer and Leahy say their opposition is not to conservatives, but extremists. Yet these two men, much closer to leftist extremism than the conservative appointees they oppose are to right-wing extremism, obviously believe that conservatism itself is extreme. Need proof? OK, Schumer said, "No more of these right-wing judges getting through." Senate Democrats are not interested in according the president constitutional deference for judicial appointments. They are determined to usurp his appointment authority. In the process they will pave the way for further usurpation by way of the courts’ continuing encroachment on the prerogative of the executive and legislative branches, through liberal judicial activism. These Senate hearings are another step in the process of denying President Bush’s legitimacy and authority. The Democrats have telegraphed their planned offensive. President Bush and Senate Republicans must draw a line in the sand and vigorously defend Bush’s judicial appointments. Timidity and compromise in the face of this extra-constitutional assault will be devastating to the Bush presidency and to the interests of judicial restraint.