President Bush's Judicial Nominees Represent A Legacy Worth Fighting For

I am about to take a position that will make me a heretic in the conservative movement. It won't be the first time, although other heretical positions have tended to be about people, such as the testimony that I delivered against John Tower for Secretary of Defense.

I think federal judges are the most important legacy an administration can leave. They can outlast the presidency by a generation. Everything else a president does can be rescinded or repealed by his successor. Bill Clinton, with the stroke of a pen, rescinded the so-called Mexico City policy that had started during the presidency of Ronald Reagan and continued through the administration of George Herbert Walker Bush.

If Senators Ted Kennedy (D-MA) and Tom Daschle (D-SD) succeed in blocking the best of President Bush's federal judges, they will have deprived this administration of its most important legacy. To be honest about it, President Bush's nominees for the federal bench have been better than either those nominated by Reagan or his father. They are extraordinary. If Bush can fill all the vacancies in the federal court system, even if he should be denied a second term, then he will have made the greatest contribution a president can make.

To accomplish that, the current obstructionist tactics employed by the Senate liberals must be soundly thwarted. Right now a filibuster is being conducted against a nominee for the federal courts of appeals, and it appears a second one is being contemplated against another highly qualified nominee. At the same time, the liberals are applying a religious test against a district court nominee.

The only way a filibuster will be broken is if President Bush targets those Senators most likely to switch on cloture. He would then visit their states and single them out. Many of these Senators come from small states. A presidential visit would receive two full days of coverage. The grassroots could then follow up and really turn the heat on. In addition, when that swing is completed, Senate Majority Leader Bill Frist (R-TN) could then conduct a real filibuster, keeping the Senate in session around the clock. That would highlight to the American people just what the liberals are doing to Bush's outstanding judicial nominees. There is a high probability that enough Democrats, especially those up for re-election next year, would defect from their leadership's line on a vote for cloture, permitting an up or down vote on the nominees. The odds would then be very high that all three nominees would be confirmed.

So far so good. Now comes my heresy. Right now the President and his cabinet are out pitching his tax cuts. It is a tough sell. Most Americans do not believe we should have more tax cuts at this time. It is unlikely the president will win this battle. Make no mistake about it. I favor the President's original growth package. I want to see Congress enact it. But with the promise made by Finance Committee Chairman Sen. Chuck Grassley (R-Iowa) to Senator Olympia Snowe (R-ME) and Senator George Voinovich (R-OH) that no tax cuts higher than the $350 billion approved by the Senate would be permitted in a Conference Committee bill, it is going to be pretty tough to bring these folks back on the reservation.

The President can't handle two such issues at the same time. While I am all for his tax cuts and believe they are important to jump start the economy, I think the probability is low that the President will win this battle. On the other hand, if President Bush goes all out and makes the case against the obstructionism that is going on in the U.S. Senate, I think the probability is high that he can win that case.

I know for much of the conservative movement tax cuts are the highest priority there is. My heresy comes into play because I am suggesting that federal judges are a higher priority than tax cuts.

We can probably live with $350 billion in tax cuts, especially if the President pushes hard for his energy bill, which would also help to jump-start the economy.

We can't live with Ted Kennedy and Tom Daschle keeping the best of Bush's judicial nominees off of the bench.

In my view, the White House needs to scrap its tax cut crusade immediately in favor of a crusade to get enough Senators to vote for cloture so that his judicial nominees can be confirmed. The federal judiciary affects every issue any of us is interested in.

The war in Iraq may not be Bush's lasting legacy. We don't know how many weapons of mass destruction will be found. Moreover, if democracy brings fundamentalist Muslims to power, we will end up with something worse than what we had before the war. I am not suggesting that things will necessarily turn out bad. I am suggesting it is a possibility. On the other hand, President Bush's superb nominees for federal judgeships — if they are confirmed — will be on the federal bench for 20, even 30 years. That is a legacy worth fighting for.

I think federal judges are the most important legacy an administration can leave.

Cloture Rule/fillibuster of the confirmation process is a violation of Senators Oath of Office and the Constitution.

US Senate: Art & History Home > Origins & Development > ... I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

US Senate: Art & History Home > Origins & Development > Powers & ...

Using the filibuster to delay debate or block legislation has a long history. In the United States, the term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill.

In the early years of Congress, representatives as well as senators could use the filibuster technique. As the House grew in numbers, however, it was necessary to revise House rules to limit debate. In the smaller Senate, unlimited debate continued since senators believed any member should have the right to speak as long as necessary.

In 1841, when the Democratic minority hoped to block a bank bill promoted by Henry Clay, Clay threatened to change Senate rules to allow the majority to close debate. Thomas Hart Benton angrily rebuked his colleague, accusing Clay of trying to stifle the Senate's right to unlimited debate. Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote -- a tactic known as "cloture."

The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to evoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.

Senate Is to Advise And Consent, Not Obstruct and Delay The Framers Envisioned A Narrow Role for The Senate in The Confirmation Process.

United States Senator Jeff Sessions

Wednesday, February 26, 2003 Judicial Nominations -- Miguel Estrada

How did we get into this circumstance? How did we get to this point where the ground rules have changed, that we are into an obstructionist tactic, an unfair procedure? What happened? After the last election when President Bush was elected, the New York Times reported that the Democrat majority, the Democratic Senators at that time early in President Bush's administration had a retreat at some location unknown to me, and they heard at that time from three liberal law professors, Lawrence Tribe, Cass Sunstein, and Marcia Green burger. These liberal professors at this private retreat told the Democrats at that time, they should change the ground rules for nominations. They should ratchet up the pressure and they should alter the historic rules of courtesy, the historic presumptions in the Senate, and they should change how nominees are treated. They said: You have the power to do it. Do it, Democrats. Stand up and block these nominees. Do not accept the nominees from President Bush, like this Republican Senate accepted President Clinton's nominees. Fight every step of the way. That is apparently what has happened.

Shortly after that, when the majority in the Senate changed, I served on the Administrative Oversight and the Courts subcommittee. Senator Schumer chaired that subcommittee. He held hearings. He held hearings to argue the point that the burden of proof for a confirmation of a judge should change and it ought to be on the judge to prove he is qualified. That has never been done before in the history of this country. We had Lloyd Cutler, former Counsel to the White House of Democrat Presidents. We had others testify. They testified that it would be wrong to shift the burden to the nominee, it was not the right thing to do. Then he had hearings to say we ought to just consider your politics, your ideology, as he said, and we can consider somebody's politics, and we can reject them if we do not agree politically.

Until the public and congress have the knowledge and will to deal with renegade courts - federal judges will continue to be the most important legacy an administration can leave.

I know for much of the conservative movement tax cuts are the highest priority there is. My heresy comes into play because I am suggesting that federal judges are a higher priority than tax cuts.

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