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Judge Fights: The Politics of Petulance
RealClearPolitics ^ | May 4, 2006 | Ronald A. Cass

Posted on 05/03/2006 9:16:46 PM PDT by RWR8189

After the high-profile confirmations of Chief Justice John Roberts and Justice Sam Alito, judicial nominations went into limbo. Today, we'll see the opening gambits on when and whether that will end.

The reason the confirmation process came to a standstill is simple: Senate Democrats don't want additional conservatives on the bench and hope to stall votes long enough to keep them off until Democrats can reach the Holy Grail of a Senate majority. That could be a very long time coming, though Democrats always are hopeful that their day is at hand.

It's less clear why Republicans let the nominations wallow in political purgatory. Perhaps, the politicians were simply reading the tea leaves of public opinion. While filling open seats on federal circuit courts is important, it doesn't get the attention that Supreme Court nominations do. The crisis over the circuit nominations, briefly defused by the "Gang of 14" accord, seems long ago and far away - though it happened only a year ago. The seven-month push to find and confirm replacements for Justice O'Connor and Chief Justice Rehnquist, following shortly after, seemed to suck the air out of public concern with the lower courts. Only interest groups on left and right maintained their focus on the issue, and these groups mainly talk to themselves rather than to the core senatorial (i.e., electoral) concern.

The lethal combination of public disinterest and senatorial courtesy has allowed Senate Democrats to deny a vote to nominees who have crossed them either personally or ideologically. Grudge match confirmation fights aren't new, but Democrats have taken the politics of petulance to a new level. Senate practice tolerates holding up floor votes as payback by one side of the aisle, or even by one particular Senator, but the widespread use of this tactic now politicizes the judicial confirmation process and undermines the rule of law.

The assumption behind the Democrats' approach - that courts already are politicized - is contradicted by the broad agreement across judges of different parties (more than 95% of cases in the circuit courts are decided unanimously). By and large, judges understand that they are bound by legal rules, follow conventions for hearing and deciding cases that increase fidelity to fixed rules, and appreciate that their role is not the political one of making laws and choosing among competing values but the judicial one of interpreting and applying law made by others. Of course, some judges, some of the time, are not guided by law. Some make silly decisions. Some look overtly political.

Banning the Pledge of Allegiance because it mentions God? Allowing private property to be taken by government fiat for private use? These decisions have been recognized widely as wrong - but that hardly makes the case for a radical transformation of the confirmation process.

What is happening now in the Senate, however, treats the entire federal judiciary as if it were composed of ward-level politicians making similarly political decisions. The Democrats' no-vote strategy plays only to the interest groups and not to the broader public - certainly not to the betterment of the courts. Allowing a minority of Senators to derail the confirmation process because they don't like something in a nominee's pedigree - almost always something that offends political, not professional, sensibilities - makes the confirmation process and the federal judiciary itself more political.

Look, for example, at the case of Brett Kavanaugh, a smart, talented, accomplished lawyer who has offended the opposition (or at the very least one Senator who's married to a former President) by working for two of their bêtes-noir: Ken Starr and George W. Bush. Both Bush and Starr are honorable men who served their nation honorably in public office. Starr was a highly respected federal judge himself. As with anyone in the public eye, you can agree or disagree with their actions, but politicians should be above casting any connection with such men as conduct unbecoming a judge.

Kavanaugh has been denied a vote for the past five years for that offense, but that could soon change. This morning the Senate Judiciary Committee will finally vote on his nomination to the US Court of Appeals, probably along party lines, and will move this long-delayed nomination to its next phase. Democrat Senators like Harry Reid, and Presidential hopefuls Hillary Clinton, John Kerry, Joe Biden (add here the names of almost any Senate Democrat you've heard of) will then have a choice: follow historic Senate tradition by giving him an up-or-down vote and confirming a qualified nominee, or - as Reid already has hinted he'd prefer - filibuster a qualified judicial nominee because of the ideas he's stood for and the people he's worked with.

Senate Republicans shouldn't allow Democrats to filibuster - they should declare it contrary to Senate rules. Moreover, Reid and his "Gang of 44" shouldn't get to filibuster on the cheap. If they really want to filibuster Kavanaugh's nomination, as Reid suggests, bring in the mattresses and television crews. Do away with the Bobby Byrd-inspired two-track system of faux-filibusters - which require only the threat that you'd keep talking if you had to in order to keep the Senate from actually (Heaven forbid!) taking a vote. Brett Kavanaugh and all the other stalled nominees deserve up-or-down votes. The burden, and the spotlight, should be on any Senate Democrat who refuses.

Political payback has a long history. But using judicial confirmations to extract the pound of political flesh threatens to make our judiciary just another political venue, subject to the same fights and same intrigues as ordinary politics. That route undermines the independence of the courts. Our courts work as well as they do because judges accept that judicial appointment carries a professional - not a political - commitment. If we cannot stop the partisan bickering over federal judges, we risk the protection of the rule of law. That is something Democrats and Republicans alike should fear.

 

Ronald A. Cass is Chairman of the Center for the Rule of Law, Dean Emeritus of Boston University School of Law, and author of “The Rule of Law in America” (Johns Hopkins University Press)


TOPICS: Constitution/Conservatism; Editorial; Government; News/Current Events
KEYWORDS: alito; brettkavanaugh; bush43; federalcourts; filibuster; flatulence; judges; judicialnominees; kavanaugh; petulance; roberts

1 posted on 05/03/2006 9:16:51 PM PDT by RWR8189
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To: RWR8189
It's less clear why Republicans let the nominations wallow in political purgatory

Laffer of the week.


2 posted on 05/03/2006 9:31:22 PM PDT by nathanbedford (Attack, repeat, Attack..... Bull Halsey)
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