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(April 2003) BENCHING BORK -- Robert Bork as recess appointee if Dems refuse Bush nominations?
national review ^ | Barnett

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.


TOPICS: Constitution/Conservatism; Government; News/Current Events; Politics/Elections
KEYWORDS: bork; supremecourt

1 posted on 11/08/2006 2:50:58 PM PST by doug from upland
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To: Congressman Billybob

Ping


2 posted on 11/08/2006 2:51:35 PM PST by doug from upland
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To: doug from upland
Bork?

Image and video hosting by TinyPic
3 posted on 11/08/2006 2:53:42 PM PST by cripplecreek (If stupidity got us into this mess, then why can't it get us out?)
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To: doug from upland

pong


4 posted on 11/08/2006 2:53:45 PM PST by Cinnamon
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To: doug from upland
I suggested just this a while back. Don't want Estrada? Here's Bork until Estrada is confirmed.

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.

5 posted on 11/08/2006 2:56:47 PM PST by Defiant (The shame of Spain has stained the fruited plain.)
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To: Cinnamon
haha now that would be a nuclear option.
6 posted on 11/08/2006 2:57:27 PM PST by catbertz
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To: doug from upland

We could only hope.


7 posted on 11/08/2006 2:57:33 PM PST by svcw
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To: doug from upland

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.


8 posted on 11/08/2006 2:59:11 PM PST by INSENSITIVE GUY
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To: doug from upland

Brilliant, if he has the stones to do it.


9 posted on 11/08/2006 3:00:32 PM PST by perfect_rovian_storm
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To: doug from upland

I like it! The idea makes me smile, and I haven't smiled much today.


10 posted on 11/08/2006 3:01:13 PM PST by Tuscaloosa Goldfinch (good fences make good neighbors!)
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To: cripplecreek
Borg?


11 posted on 11/08/2006 3:02:48 PM PST by Vaquero ("An armed society is a polite society" Robert A. Heinlein)
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To: Defiant

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.


12 posted on 11/08/2006 3:03:26 PM PST by tflabo (Take authority that's ours)
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To: doug from upland

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.....


13 posted on 11/08/2006 3:03:41 PM PST by taildragger
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To: doug from upland

"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.

Retch!

Like father like son.


14 posted on 11/08/2006 3:06:30 PM PST by TFMcGuire (Either you are an American, or you are a liberal)
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To: tflabo

Not elect, but yes, nominate a conservative judge. If they refuse someone who is totally qualified, we reverse Bork the b*st*rds.


15 posted on 11/08/2006 3:07:40 PM PST by doug from upland
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To: doug from upland

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.


16 posted on 11/08/2006 3:07:58 PM PST by Apercu ("A man's character is his fate" - Heraclitus)
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To: tflabo

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.


17 posted on 11/08/2006 3:08:11 PM PST by MinnesotaLibertarian
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To: tflabo

Can't do it. They'll never get out of committee.

This could turn out to be the only solution.


18 posted on 11/08/2006 3:08:48 PM PST by perfect_rovian_storm
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To: MinnesotaLibertarian

They are not going to flip. A conservative judge will never get out of committee.


19 posted on 11/08/2006 3:09:10 PM PST by doug from upland
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To: doug from upland

no, too old.


20 posted on 11/08/2006 3:11:15 PM PST by Steven W.
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To: doug from upland
I really wonder if Bork would go along with this. Wasn't it Reagan's lose of the Republican majority in the Senate in 1986 the reason the Dems were able to bork Bork? Which forced Reagan to gamble and lose with Souter. Recent electoral developemant must bring back bad memories for Bork.

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.

21 posted on 11/08/2006 3:11:29 PM PST by drpix
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To: svcw
Not going to happen. Bush looked real pis***. Bush figure IMHO those Conservatives, independents, Libertarians & Reagan Democrats who did not vote or voted non-republican during a time of World War & allowed a radical LEFT wing Anti-American cut & run appeasers Democratic leadership gain power in BOTH branches of government have made their bed, now they can sleep in it.
22 posted on 11/08/2006 3:11:52 PM PST by Max01
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To: doug from upland

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?


23 posted on 11/08/2006 3:11:58 PM PST by Steven W.
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To: Steven W.

He is not too old for one session. That is what a recess appointment would get. It would be a shot over the bough.


24 posted on 11/08/2006 3:14:59 PM PST by doug from upland
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To: doug from upland
Here's another nuclear option - but not related to judges.

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?

25 posted on 11/08/2006 3:15:19 PM PST by willgolfforfood
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To: doug from upland

Damn straight. My man, we need this guy!


26 posted on 11/08/2006 3:15:52 PM PST by dforest (be careful you don't become what you hate the most)
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To: drpix

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.


27 posted on 11/08/2006 3:22:28 PM PST by Dilbert San Diego
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To: doug from upland
Best choice would be to start soliciting Democrat Senators to come on over to the other side of the aisle. If the Dems can do it the Pubs can do it.
28 posted on 11/08/2006 3:30:46 PM PST by Pete from Shawnee Mission
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To: Dilbert San Diego
Thanks for the correction. Then, Reagan lost the Republican majority in the Senate in 1986 and Bush-1 was stuck with a Dem Senate majority for HIS Bork nomination.
29 posted on 11/08/2006 3:38:56 PM PST by drpix
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To: Dilbert San Diego
Thanks for the correction. Then, Reagan lost the Republican majority in the Senate in 1986 and Bush-1 was stuck with a Dem Senate majority for HIS Bork nomination.
30 posted on 11/08/2006 3:39:13 PM PST by drpix
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To: Dilbert San Diego
Thanks for the correction. Then, Reagan lost the Republican majority in the Senate in 1986 and Bush-1 was stuck with a Dem Senate majority for HIS Bork nomination.
31 posted on 11/08/2006 3:39:27 PM PST by drpix
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To: tflabo
I think we do both. Nominate a solid conservative, give the Dems a reasonable time to complete the hearing process, and if they stall or vote against the nominee, then recess appoint the nominee, and resubmit the nomination. Alternatively, they can recess appoint Bork while nominating the long-term nominee.

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.

32 posted on 11/08/2006 3:46:04 PM PST by Defiant (The shame of Spain has stained the fruited plain.)
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To: Max01

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.


33 posted on 11/08/2006 4:03:27 PM PST by georgiarat
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To: tflabo

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.


34 posted on 11/08/2006 4:10:27 PM PST by bpjam (Vote. Vote Now. Drag your neighbors along.)
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To: doug from upland

Surely you jest! This is something the GOP cannot do as this recommendation comes from Randy Barnett, a noted libertarian. ;-)


35 posted on 11/08/2006 4:12:30 PM PST by Unknown Pundit (I really do post with a paper bag over my head.)
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To: doug from upland

I'm not too keen on Bork, but if there's anything that Bush shouldn't relent on, it's this.


36 posted on 11/08/2006 4:14:03 PM PST by dr_who_2
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To: bpjam

Santorum would be going more than nuclear.


37 posted on 11/08/2006 4:16:17 PM PST by doug from upland
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To: georgiarat
So the answer is allowing the Liberal Dems to take control of both Houses in a time of a World War??? You think its going to easy to take back either House in 08. Dems will redistrict, keep moderate so as to allow Hillary to be elected President & keep hold of Congress. in 08. One other thought is that we have now most likely lost our window to take out Iran's nuke program.
38 posted on 11/08/2006 7:37:38 PM PST by Max01
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