Judicial impasse?

William F. Buckley
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Posted: Nov 14, 2003 12:00 AM
The extravaganza in the Senate is designed by Republican management to highlight the Democratic threat of filibuster to estop nominees by President Bush to the circuit courts. The handiest counter-argument, used by critics of the GOP maneuver, is the old "tu quoque" -- you Republicans did the same thing to our nominees back when Clinton was president. Mr. Al Hunt, writing in The Wall Street Journal, presses home that point, but tends to ignore relevant particulars.

It is true that 60 Clinton judicial nominees "didn't even get the courtesy of a floor vote." But many of these nominees hadn't even got through the Judiciary Committee. You are not entitled to a floor vote until after you have got a committee endorsement. And such endorsements are not based entirely on the abstract qualifications of the candidate. Politics suppurates from the scene. Maybe the candidate had a Youthful Folly which the president was willing to ignore? Maybe the president didn't know about it, but along comes the FBI report, unearthing the Youthful Folly, which one or more senators, on the floor, predictably won't sit still for. Better to let the nominee sit around and do nothing?

What about the nominee whose name appears because the boss in Chicago wants to please an important friend? So the White House goes along, even though that dude is not going to end up on the bench. But for the rest of his life he will wear that ribbon on his lapel, Presidential Nominee for the Circuit Court. And of course, on the district courts, senators from the candidate's state can exercise their "blue slip" rights to object. Mostly, presidents observe these senatorial prerogatives, but not always: and committee members are not bound by them.

But the fight in the Senate has to do only in part with procedure. What makes the issue boil is the ideological heat. There are constitutional questions raised, and the Supreme Court is the accepted alembic in these matters. No one of the four nominees the Democrats are holding up has been appointed to the Supreme Court, but the age of several justices there, and of many judges in the lower courts, is advanced, so that there will be much judicial traffic in the next period. If Mr. Bush gets another term, he will heavily influence the composition of the judiciary nationwide.

Yes, we need to know, as Mr. Hunt reminds us, the answers to several questions. Are there to be any limitations on civil rights statutes based on the post-Civil War constitutional amendments? Can the scope of Congress in regulating commerce be limited? Will environmental protection and rights granted to the disabled be extended indefinitely? How far is the inflamed marathon to separate church and state supposed to go? We may trust in God, but we may not be permitted to say so on government premises.

What is lost is of course the search for judicial temper. The ostensible challenge of the judiciary is to apply minds unlocked to the weighing of questions coming in for fresh exegesis. But those who seek out open minds in bright and learned advocates face one thorny problem especially, which is Roe v. Wade. Mr. Hunt acknowledges that "the Democrats emphasize (that issue) too much." But that decision is this epoch's Dred Scott decision. One could not reasonably ask the courts, after 1857, to train their minds exclusively on other issues than the right of Congress to chip away at the institution of slavery. Hunt cites two circuit court nominees, Michael McConnell and John Roberts -- "two of the most distinguished Bush appointees" -- as being "outspoken advocates of reversing the Roe v. Wade abortion-rights decision."

That question -- whether the unborn are human -- is the central political and philosophical issue of our time, and the Democratic Party, which does not allow to speak at its presidential conventions a Democrat who opposes Roe v. Wade, does what it can to protect the judicial flank from any Missouri Compromises that might loom, designed to interfere with abortion-at-will.

The only way a nominee for the Supreme Court can cope with that issue is to follow the lead of Clarence Thomas, who pretended not to have considered the question when asked about it by the Senate Judiciary Committee. But can we get satisfactory candidates for the courts who plead nescience as their primary qualification?