Skip to comments.(April 2003) BENCHING BORK -- Robert Bork as recess appointee if Dems refuse Bush nominations?
Posted on 11/08/2006 2:50:53 PM PST by doug from upland
NOTE: I believe that one of the many reasons the Dems won last night was because of the President's failure to stand up and fight them. And the GOP senate failed to fight them. No decent judge is going to be confirmed in the next two years. Bush could show that he is not going to kowtow by nominating good solid judges who believe in the Constitution and, if the Dems fail to confirm qualified judges, he needs to recess appoint. Can you imagine how the conservative base would stand up and cheer if Robert Bork went to the bench for a year? There could really be some very meaningful cases decided. And it would show backbone. He needs to show that now, not only for his presidency, but for our troops. =================================================================== ===================================================================
April 29, 2003, 8:45 a.m. Benching Bork How to end the war over judges.
By Randy E. Barnett
With their unprecedented filibuster of Miguel Estrada, Priscilla Owen, and others, Senate Democrats have once again raised the ante in the war over the present and future of the judiciary. The New York Times is opposing yet another Bush appointee, Carolyn Kuhl. The Washington Post has come out against yet another, Bill Pryor. And the list goes on.
With each escalation, Democrats have confronted Republicans with the option of either capitulation, by refusing to nominate any conservative appointees, or escalation. Rather than capitulate, Republicans have opted for a "tit-for-tat" strategy. Instead of inducing cooperation by the Democrats, however, these retaliations have induced Democrats to persistently double their bets with each Republican countermove, creating what legal theorist Larry Solum has called a downward spiral over the judiciary.
At the moment, Democrats and their activist cadres have obviously calculated that Republicans have no means of retaliating that would not hurt Republicans more than Democrats. So what if the Senate is tied up indefinitely by a filibuster? This only means that the Bush tax plan remains unenacted and the economy flat-lined until the next election. So what if no Medicare reform is adopted? This only preserves an issue for Democrats to run on in the next election cycle.
The one real power Republicans have over the Democrats in this fight is the recess-appointment power. It's the only threat that could force Senate Dems to budge. The Founders created the recess-appointment power to assure that the judiciary could continue to function if circumstances or political factions prevented the Advise and Consent process from functioning effectively. Recess appointments have an impeccable historical pedigree; beginning with George Washington, presidents have made recess appointments to Article III courts. Since the Founding there have been more than 300 recess appointments of judges. President Eisenhower and Kennedy made 53 such appointments between them. Lest we forget, both Earl Warren and William Brennan were recess appointments to the Supreme Court by President Eisenhower (later confirmed by the Senate).
The main problem with a recess strategy is that it makes the GOP's best nominees temporary second-class judges. Not only would this fail to realign the judiciary, but it would deter the most promising judicial candidates from accepting. For this reason, recess appointments, as currently conceived, are not a credible threat. Well, until you add a twist.
President Bush could threaten to line judicial openings with committed conservative and libertarian recess appointees, people who are too old, too young, too smart, too conservative, or too burned by previous failed nominations to ever be considered for ordinary judicial appointments. Unlike practitioners who cannot abandon their practice for a short stint on the bench, professors who can take a few semesters off and judges with no prospects of higher judicial office would be ideal. It would be like a judicial clerkship program for conservative and libertarian law professors that can continue as long as there is a Republican president.
If the Democrats don't think they like "stealth" candidates like Miguel Estrada, just wait until they experience the delights of judges Richard Epstein, Lillian Bevier, Bernard Siegan, Lino Gragia, and dozens more like them on the Courts of Appeals. Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court? For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees.
Of course, these recess judges and justices would serve only until the end of this session of Congress, but for an academic or near-retiring judge with no future judicial ambitions, this would not serve as too great a deterrent. Imagine the fascinating opinions we would get from these "untenured" judges before they exit the judicial stage. Though they cannot prevent recess appointments, Democrats and their left-activist allies would likely try to deter prospective nominees by trashing the reputation of those appointed this way. There will be some safety in numbers, however, as it will be hard to focus on 30 or 50 nominees, all with impeccable credentials, at the same time.
The beauty of this threat is that it need never be implemented. Once a suitably long list is circulated privately or, if need be, publicly President Bush can offer not to appoint any of them in return for a floor vote on all his current and future nominees. Senate Democrats won't have to commit to voting for the president's nominees, they would just need to commit to allowing a full-Senate vote. To cement this new social contract and end the downward spiral and for the sake of fairness Senate Republicans would commit to support changing Senate rules to ensure that nominees of future Democratic presidents also get the same right to a floor vote.
But if Senate Democrats reject cooperation, then the courts will be packed by heavy-hitter libertarian and conservative intellectual judges for the next two years. Perhaps by threatening the Democrats with an outcome that left-activists in their base prefer even less than the nominees they now are filibustering, the current death spiral can end.
At worst, the American people will finally find out if the world is a better or worse place if the judiciary is dominated by libertarians and conservatives. If the results are not as catastrophic as the Democrats always warn the way they do about private Social Security accounts and school vouchers maybe some of these recess judges might even get confirmed in the end. Then the judiciary will be revolutionized, in less time than the normal confirmation process would ever allow. Can the Senate Democrats and their activist cohorts afford to take that chance?
Randy E. Barnett is the Austin B. Fletcher Professor at Boston University School of Law, a senior fellow of the Cato Institute, and the author of The Structure of Liberty: Justice and the Rule of Law.
For the next one, he should just select the best person available, like Janice Rogers Brown, and then recess appoint that person until the Senate confirms. If they don't confirm, it gives a good issue for the 2008 elections, and fires up the base, and then the nominee can be confirmed in 2009. It's better than nominating a "moderate" that the Dems will accept and being stuck with that person for 30 years.
We could only hope.
Each time the democrats oppose a Bush appointee,Bush should escalate to a more right wing judge until we get a true hardcore.The appearance on t.v.would make the democrats look so unreasonable they would lose favor and it would get progressively harder for them to make an argument.
Brilliant, if he has the stones to do it.
I like it! The idea makes me smile, and I haven't smiled much today.
No...we elect a solid conservative judge. We have 49 Senators...if the Senate Libs and media go banana poo let all see it for what it is. Best case we get a conservative judge. Worse case he gets Bork'ed and we have ammunition for 2008.
This subject came up with a conservative professor (retired) friend of mine the other night. I made him laugh when I countered with his "Bork" with my David Limbaugh, Ann Coulter, or Mark Levin, he had a good laugh, but it would be fun to see them spit green pea soup like Linda Blair.....
"Bush could show that he is not going to kowtow...."
I am afraid our glorious president is demonstratine even today how to roll on one's back to have his tummy scratched by his new imperious Democrat masters.
I have lost much respect as I at least thought he possessed a modicum of manhood. I guess his inviting Muslims into the white house during Ramadan should have tipped me off.
Now he's throwing Rumsfeld out of the boat and replacing him with a Neville Chamberlain type.
Like father like son.
Not elect, but yes, nominate a conservative judge. If they refuse someone who is totally qualified, we reverse Bork the b*st*rds.
It all starts at the top. As much as one respects President Bush, he is the leader of his party so he gets the blame.
All we need is one Dem to flip, and there have been several (Ben Nelson, Salazar, Pryor, Byrd, Johnson, Landrieu) that buck the party line on judges pretty frequently.
Can't do it. They'll never get out of committee.
This could turn out to be the only solution.
They are not going to flip. A conservative judge will never get out of committee.
no, too old.
If another SCOTUS seat opens up in the next 2-years and Bush has to deal with Dem control of the Senate... well then I guess we can say all those "conservatives" who stayed home yesterday will get "soutered"... and they'll deserve it.
btw - what about the gang of 14? Surely they will stay together now, right? I mean John McCain put that group together to make DemoncRATs happy and I'm sure they'll return the favor, no?
He is not too old for one session. That is what a recess appointment would get. It would be a shot over the bough.
I think President Bush ought to go to his next State-of-the-Union speech (immediately after the new Congress is sworn in) and ask for a formal declaration of war.
It could be against Iraq, for instance, so we can finish the job properly. Or against Afghanistan-which the dims all say is where the war should be fought. It could be against Iran, or Syria, or both, or all three. Because we are going to be proactive in preventing any more terror attacks. For good measure, I don't see why a formal declaration of war against North Korea shouldn't be in the mix. I distinctly remember that was on of the Democratic recommendations during the actual buildup to the invasion of Iraq.
All the dims have been screaming for years that we're not fighting the right people in the War Against Terror. They always question why we're "wasting time" in Iraq, when we should be fighting some other country. Fine, he can cite their objections to Iraq, cite the recommendation to have a real war against terror with country X (I'm sure Nancy, Howard, Murtha, Durbin, etc. have given him legions of excellent advice in this regard - on the record) and we'll see if they actually want to fight this war anywhere.
So they follow the president and declare war. Now, there's no second guessing it. We don't have this quasi-whatever nebulous authorization to use whatever force is necessary that they waffle back and forth on. We have A Formal Declaration of War. With Democrats on record supporting it.
Or we have their formal, on-the-record response to reject such a declaration. Either way, we have them on record with an up or down vote on an actual, declared, War on Terror.
If the inevitable terrorist attack happens here again, what do they hide behind and carp about then?
Damn straight. My man, we need this guy!
Souter was appointed by George H.W. Bush. After Bork's nomination was defeated, Reagan appointed Douglas Ginsburg, who confessed to smoking marijuana and withdrew his nomination. The next choice was Anthony Kennedy, who was confirmed and is still on the Supreme Court.
Either way, we need to win in '08 to keep a conservative in that slot. No way will the Dems allow a conservative to be confirmed. Just not possible. So, worst case we get Bork or the nominee for 2 years, and then a Dem comes in and we're screwed (but if a Dem comes in with a Dem Senate in '08 we're screwed anyway). Best case, we get a conservative in '09, and a good judge for 2 years, and a great issue with the base. And we avoid getting stuck with a Kennedy or O'Connor for 30 years, which will make the base MAD AS HELL instead of motivating them to come out and vote in '08.
The voters did not make the bed..... Bush and the Rep leadership did. What were the three main hot buttons. The war in Iraq, the corruption in the house, and illegal immigration. Bush did not play into the corruption in the house but the War in Iraq with no strategy but stay the course, and his misguided approach on illegal immigration leaves him primarily responsible. Remember he also wanted Harriett Myers for the Supreme Courn which was a much worse choice than what we have now.
He acted well after 9-11 and he is right that we have a major war against radical Islam. But even there he was more concerned about not appearing intolerate on Islam rather than dealing with the root issues. Likewise with securing the borders. Strong action on any three of the above and the Republicans would still be in control.
How about electing Rick Santorum? Its not like a Supreme Court Justice needs to be a lawyer or even a former judge. Remember the Warren court? Not all judges.
Surely you jest! This is something the GOP cannot do as this recommendation comes from Randy Barnett, a noted libertarian. ;-)
I'm not too keen on Bork, but if there's anything that Bush shouldn't relent on, it's this.
Santorum would be going more than nuclear.