Time to play hardball on Estrada and other nominations

Weekly Standard ^ | 4/23/03 | Hugh Hewitt

[votelife]

Recess Time With Senate Democrats taking obstructionism to new levels, the president should re-read Article II, Section 2, Paragraph 3. by Hugh Hewitt 04/23/2003 12:00:00 AM

Hugh Hewitt, contributing writer

THE LEFT EDGE of the Senate Democratic caucus has taken control of the judicial-nomination process and has forced the entire Senate into what is, at best, an extra-constitutional swamp. With their filibuster of D.C. Circuit Court nominee Miguel Estrada, their threatened filibusters of Fifth Circuit nominees Priscilla Owen and Charles Pickering, and their obstruction of other nominees such as John Roberts, Carolyn Kuhl, and a half-dozen Sixth Circuit nominees, Senate Democrats have decided it is good policy to wreck a judicial nomination and confirmation process that has worked for more than two centuries.

The radical agenda of the Senate Democrats has escaped a great deal of attention, though it surely played a role in their historic defeats in November 2002 and will do so again in the more than half-dozen referendums on incumbent Democratic Senators looming in November 2004. The temptation to let the likes of Tom Daschle, Harry Reid, Patty Murray, Blanche Lincoln, and Chuck Schumer hang themselves on their extremist approach must be huge, but President Bush and his advisers would be better served by aggressively defending the Constitution at every step. There are many ways to do this, including a jam-down of new Senate rules with 51 votes. But a way-station to such a melt-down is found in the president's recess appointment power.

Article II, Section 2, Paragraph 3 provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

Thus the president can fill every judicial vacancy that presently exists, though these appointments will lapse in the fall of 2004. Nominees have traditionally been reluctant to fill such temporary posts as the Senate guarded its confirmation power jealously and was likely to turn a cold-shoulder to the recess appointees in much the way that the NFL veterans shunned the temporary players who took the field during their strike.

Bill Clinton broke the taboo against recess appointments to the bench, however, with his end-of-term appointment of Roger Gregory to the Fourth Circuit Court of Appeals--an appointment President Bush made permanent through his nomination and the Senate's consent as a gesture of conciliation. That gesture and many others have been rejected as inadequate by the Leahy-Daschle-Schumer-Kennedy caucus. Kindness didn't--and won't--work. Stronger measures are called for, not only to meet real needs for judges, but also to bring the controversy to the public's attention. The Democrats have crashed the process and shredded the traditions because of the pressure of abortion absolutists. Their record is a sorry one, and attention generated via the recess-appointment power will help shine light on their excess.

At this writing there are 24 vacancies on the U.S. Courts of Appeals. The president would be wise not to launch too many recess appointments at first, but it would be a strong opening move to announce that, say, two of the six blocked nominees to the Sixth Circuit will be appointed over the Memorial Day Senate break if there is no movement with those nominees, and that the two vacancies without nominees on the D.C. Circuit (there are a total of four, with Estrada and Roberts having been nominated in May of 2001) will receive nominees in May and will be appointed during the holiday recess unless at least Roberts (and perhaps both Roberts and Estrada) gets a floor vote before then.

The Sixth Circuit nominees are all named, and two would have to volunteer for this sort of hardball, but the two D.C. open slots would be best used to serve up a couple of rock-ribbed conservatives who might be willing to serve 15 to 18 months for the good of the cause. With the freedom from pressure to conform to Chuck Schumer's strange reading of the Constitution, these two judges could provide an impressive legacy of opinions over their year-and-a-half of service. Readers are invited to suggest nominees to me from among the caucus of "They Couldn't Get Confirmed by This Senate in a Hundred Years" club because of their intellectual firepower. Perhaps Judge Bork hankers for a D.C. Circuit encore?

If the Senate radicals remain entrenched in their desire to overturn the Constitution, either the Senate can discipline itself with new rules or the president can increase the number of recess judges and announce a commitment to keep all such nominees on the bench through the recess process for as long as his power to extend their service endures. As Bill Clinton demonstrated, even a lame-duck president can employ the power just prior to his replacement's arrival. President Bush could keep using the recess power through December of 2004 even if defeated, and through December of 2008 if reelected.

This approach would announce a fundamental change in the nomination process, though a constitutional one. It would answer the Democrats' irresponsible absolutism with a measured and transparent reply. Conservative activists would be satisfied, as would moderate defenders of the clear design of the Constitution.

The battles over judicial appointments at home are not nearly as dramatic as those battles fought abroad, but the ability to wage the latter ultimately depends upon a healthy respect for the Constitution's rules at home. Democrats have abandoned that respect in their zeal to meet the demands of the abortion-rights caucus. The president should answer their challenge.

Hugh Hewitt is the host of The Hugh Hewitt Show, a nationally syndicated radio talkshow, and a contributing writer to The Daily Standard. His new book, In, But Not Of, has just been published by Thomas Nelson.

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[votelife]

bump

[votelife]

ESTRADA Activism thread
http://www.freerepublic.com/focus/news/847037/posts

[votelife]

bttt

[votelife]

bring on the judges

[cynicom]

A few days ago, Bush had to call Frist in to tell him that he wanted his tax cuts, not the democrats tax cuts. Frist has been a non-person from the git-go and I bet Bush is sorry he was ever sold Frist by Rove or whomever.

[TruthShallSetYouFree]

Seems to me that a recess appointment could be just the opposite – it could give a judge, through well-thought out decisions, the chance to prove the DemocRats wrong and diffuse any controversy.

The democrats are generally wrong, but even public support for a nomination will not overcome the need for a 60-40 majority to make the Senate filibuster-proof. If a recess appointment gives a judge the opportunity to show that he is against: late-term abortions, quotas disguised as affirmative action, or gun-grabbers who don't give a hoot about The Second Amendment, the dem's power base will come out in force against their permanent approval.

[firewalk]

A few days ago, Bush had to call Frist in to tell him that he wanted his tax cuts, not the democrats tax cuts...

Really? I didn't hear about that...why wasn't I told sooner...

[cynicom]

Before...It was all over the media and of course FR. Frist had joined in with the dems for the lowest figure. After the woodshed meeting, he said he now believed $570 billion was the proper amount. So much for Senate leadership. Daschle is still in charge.

[firewalk]

cynicom, I don't read every thread, and have trouble paying attention to those threads that I'm interested in (-:

Mostly I meant my post to you as a (sort of) joke. You want to debate with someone (and picked me) nope...

[cynicom]

Nope, just assuring you that the event happened. Frist is just another weak sister that the pubs put in charge. That ought to wake up the troops here. hehehe

[firewalk]

Frist is just another weak sister that the pubs put in charge. That ought to wake up the troops here. hehehe

(weak sister indeed) troublemaker (-:

[cynicom]

Partisan pubs have no sense of humor, zero, nada, zilch. Just like their democrat brethern partisans.

[firewalk]

...laughing as I walk away...

[Republican Red]

I just got a call from the Republican National HQ. I was told Mark Racicot appreciates me and thanks me for my financial contributions to the national party. They wanted to know how much I would be giving today. I told them they wouldn't get a nickle from me until the Republicans showed some backbone and had a real old fashioned filabuster. I will not financially support a party that rolls over and plays victim. The caller said she was taking all comments and would pass it on. I won't hold my breath.

[votelife]

good move. I gave to the RNC not too long ago and am looking forward to their call!

[votelife]

bttt

[votelife]

Dear President Bush, With the Surpeme Court session getting ready to close, it may well be time for perhaps the most important domestic decision of your presidency: the appointment of a Supreme Court Justice(s). The main reason why I supported you in 2000 and why I wanted Daschle out of power in 02 (and 04) has to do with the courts. I want America courts to interpret law, not write law. During your presidential campaign you said Thomas and Scalia were your two model justices. Those are excellent models. The High Court needs more like them. Clarence Thomas recently said to students that the tough cases were when what he wanted to do was different from what the law said. And he goes by the law. This should be a model philosophy for our justices. Your father, President Bush lost his reelection campaign for 3 main reasosn, as far as I can see. 1. he broke the no new taxes pledge 2. David Souter 3. Clinton convinced people we were in a Bush recession (which we had already come out of by the time Clinton was getting sworn in)

I urge you to learn from all three of these: 1. on taxes, you're doing great. Awesome job on the tax cut. 2. good job so far on judicial appointments. I want to see more of a fight for Estrada, Owen, and Pickering, but I commend you on your nominations. 3. by staying engaged in the economic debate you'll serve yourself well

I have been thoroughly impressed with your handling of al Queida, Iraq, and terrorism. You have inspired confidence and have shown great leadership.

But I want to remind you that your Supreme Court pick(s) will be with us LONG after you have departed office. I urge you to avoid the tempation to find a "compromise" pick. Go for a Scalia or Thomas. Don't go for an O'Connor or Kennedy. To be specific, get someone who is pro-life. Roe v Wade is one of the worst court decisions I know of, and it's the perfect example of unrestrained judicial power.

I know the temptation will be tremendous on you to nominate a moderate. But remember who your true supporters are. I am not a important leader or politician. I am "simply" a citizen who has been an enthusiatic supporter of you. I am willing to accept compromise in many areas of government but I will watch your Court nomiantions extremely closely. What the Senate Dems are doing right now is disgusting, but as the President you have the bully pulpit to stop it. Democrats will back down if you turn up serious heat on them.

Moreover, I think public opinion is shifting towards the pro-life position. Dems will want you to nominate a moderate, but almost all will vote against you anyways. Pro-choice Repubs will likely still vote for you if you nominate a Scalia, after all, you campaigned on it. So Mr. President, I urge you to stick with your campaign statements and nominate justices who believe in judicial restraint, like Scalia and Thomas.

Happy Memorial Day and may God bless you and your family.

[votelife]

FREEPer ESTRADA Activism (VANITY)
http://www.freerepublic.com/focus/news/847037/posts

[votelife]

Freepers, rather than waiting to see what happens with Estrada, we need to take the lead. That means presuring Senators, special interest groups, media organizations, etc. This thread is meant to be an ongoing effort to get this man confirmed. For too many years liberals have had their way on the courts. Now, President Bush is in a position to move the courts to the right. The election of '02 showed that the country is with the President. I think it's time to let Daschle, Hillary, and Pelosi know this is Bush country. Are you with me! Let's FREEP these people.

http://www.freerepublic.com/focus/f-news/847037/posts

[votelife]

bttt