Courting Common Sense. Washington Post Editorial
Will the White House and Congress find a better way to nominate and confirm judges?
WaPo, Wednesday, January 21, 2009; page A10
MIGHT A NEW administration and Congress bring a new approach to the handling of judicial nominations? Might pettiness give way to rationality and fair-mindedness? Don't count on it. But in such a week, we can hope.
Activists on both sides of the political spectrum already have started saber-rattling. Conservatives threaten to block "extreme" appointments by President Barack Obama without bothering to define what that means. In the process, they have all but abandoned their battle cry of the past eight years that the president is entitled to judges who reflect his "judicial philosophy." Liberal interest groups, many still bitter that the Clinton administration did not move the courts more to the left, are pressing the incoming administration to appoint "progressive" legal thinkers who can undo what they see as eight years worth of Republican damage.
There's room for improvement all around. President Bush was slow to name candidates to long-vacant seats. At times he ignored bipartisan recommendations and tapped hard-right nominees he knew had little chance of confirmation. This approach served to erode goodwill even with moderate Democrats. Democrats, meanwhile, at times engaged in unjustified filibusters and gross distortions of some nominees' records. During Mr. Bush's first term, the highly qualified Miguel Estrada was nominated to a seat on the U.S. Court of Appeals for the D.C. Circuit, but the selection was filibustered and never given a floor vote. Democrats hid behind a flimsy, bureaucratic excuse to block the nomination. The real reason for opposition: Mr. Estrada, a naturalized U.S. citizen born in Honduras, was seen as a top contender to become the first Hispanic Supreme Court justice.
Mr. Bush's second term brought the nomination of Peter Keisler to the D.C. Circuit. Opponents used a long-standing controversy over the number of judicial slots and the workload of the D.C. Circuit to argue against Mr. Keisler; that opposition did not abate when Congress settled the workload matter.
We're under no illusions that the partisan mischief will end entirely with the start of a new administration. But we can hope for improvements -- for well-qualified nominees who are judged fairly on their merits.
Wednesday, January 21, 2009
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What “Battle Cry”? By Ed Whelan
ReplyDeleteBench Memos/NRO, Jan 21, 2009
http://bench.nationalreview.com/post/?q=OTNkYTYwNzQ2Zjg4NmM1NzE4OTQ5ZjNkM2NkMGI1NzI=
The Washington Post has a house editorial today expressing hope for “rationality and fair-mindedness” on judicial nominations. To its credit, the Post’s editorial page was generally sensible and responsible on President Bush’s judicial nominations. In the same spirit, the Post faults Senate Democrats for having “at times engaged in unjustified filibusters and gross distortions of some nominees’ records”, and it reiterates its belief that Democrats were wrong to obstruct confirmation of Miguel Estrada and Peter Keisler to the D.C. Circuit. At the same time, the Post faults President Bush for being “slow to name candidates to long-vacant seats” and for “tapp[ing] hard-right nominees he knew had little chance of confirmation.” There’s certainly some merit to the first charge. The second seems boilerplate and is difficult to assess without knowing whom the Post has in mind.
One oddity of the editorial is that it claims that conservatives who “threaten to block ‘extreme’ appointments” by President Obama “have all but abandoned their battle cry of the past eight years that the president is entitled to judges who reflect his ‘judicial philosophy.’” I guess I missed that “battle cry”. I think that the dominant substantive message from conservatives over the past eight years is that nominees dedicated to judicial restraint should be confirmed—not because that was President Bush’s judicial philosophy but because it’s the judicial philosophy compatible with the system of representative government that our Constitution creates. That substantive message has been in turn combined with the procedural “battle cry” of “every nominee deserves an up-or-down vote”—a message that is very different from the battle cry that the Post invents.
To be sure, there have been some voices relying heavily on the principle of deference to the president. Those voices include the Post itself (as in its editorial “Confirm Samuel Alito”) and a number of Republican senators unwilling to engage in the battle over judicial philosophy. But that hasn’t been the “battle cry” of conservatives generally. And conservatives, consistent with “rationality and fair-mindedness”, ought to continue to fight for—and against—judicial nominees based on their judicial philosophy.