Strengthening Constitutional Self-Government

No Left Turns

How Not to Solve the Judicial Impasse

E.J. Dionne writes an op-ed in today’s Washington Post critical of President Bush’s proposal to expedite to judicial confirmations. This is not news. What is interesting is Dionne’s recommendation for solving the problem:

Ending the judicial impasse would require Bush and the Democrats to agree that this moment requires a thoughtful balance in the judiciary, and it could be easily achieved. The two sides could agree on balanced slates of highly qualified and respected judges representing strong and opposing points of view, or they could jointly agree on moderate candidates known for good sense and restraint.

The first question is why this this ideological balanced slate of judges is necessary? No such requirement was imposed upon the liberal judges of the 70s, or the conservative judges of the 80s. Rather than requiring ideological balance, the confirmation process has generally permitted the President to appoint judges of his choosing. The Senate generally reserved their fire for what they thought to be particularly questionable candidates. But what we have seen with the current Judiciary Committee is unparalleled: an unmitigated attempt to stop every possible nominee, all the way down to the lowest steps of the judiciary. The rancor over appellate judges is also unprecedented. And yet, for Dionne, the proper response is for the President to take a step back and do what no other President has done: change the Senatorial "advise" function into something roughly equivalent with a co-nominating function. Rather than attempting to alter the historical process, perhaps he should take solace in it: after all, if history in the form of Justices Brennan, Blackmun, Stevens, and Souter has taught us anything, it is that Republican presidents aren’t that great at picking "conservative" judges.

The second question is who is to define who is to define the ideology of the judges. If you listen to Charles Schumer, anyone who doesn’t agree with NARAL and the Democratic party platform is "out of the mainstream" or a rabid conservative. Even liberal scholars like Cass Sunstein have the audacity to say that there are no liberals on the Supreme Court today--and this despite the fact that Ginsburg had previously been an activist for the ACLU.

Indeed, a strong argument could be made that many of Bush’s judicial picks already meet the moderate standard. Justice Owens, for example, is not seen as a carbon-copy of Scalia, and yet that is how she was portrayed by the committee. Miguel Estrada joined with the National Organization of Women in a case suggesting punitive damages for abortion protesters, and yet he is villified as "the Hispanic Clarence Thomas." The bottom line is that a requirement to appoint moderates is silly, because the term is too subject to manipulation.

The third question is whether Dionne really would be willing to stick with the system he has outlined in the future. Clinton had two appointments to the Supreme Court, and nominated two solidly liberal votes. If this were to happen again, would Dionne really be satisfied with two moderates, or with one liberal and one conservative? What if the balance of the Supreme Court were on the line, and a solid liberal were appointed first, and now it was time for the conservative appointment. Do you really think that Dionne and a Democratic president would abide by such a system when NOW activists were marching outside their doors?

Perhaps I am too cynical, or perhaps I just think that we should stick with the historical system: Let the President choose, and let the Senate actually vote up or down nominees. That’s how we’ll solve the impasse.

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