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March 27, 2004
The Brewing War Over Judicial Nominations

In two articles today, one in the New York Times and the other from the Wall Street Journal, the battle lines over judicial nominations are being drawn in ever-starker terms. In the NYT, Democrats threaten to completly hijack the judicial confirmation process if President Bush doesn't swear to forego the recess appointment process:

"We will be clear," the Democratic leader, Senator Tom Daschle of South Dakota, told his colleagues Friday morning in a pointed speech on the Senate floor. "We will continue to cooperate in the confirmation of federal judges, but only if the White House gives the assurance that it will no longer abuse the process." ...

The breakdown, members of both parties said, came after Mr. Daschle met with the Senate majority leader, Bill Frist, Republican of Tennessee, this week to warn him that Democrats would block all future nominees unless they received assurances from the White House that there would be no more recess appointments. Senator Charles E. Schumer, a New York Democrat who is a member of the Judiciary Committee, said he conveyed a similar warning to White House officials. ...

"A group of us felt very strongly on the Judiciary Committee that the recess appointments were such a finger in the eye of the Constitution that we had to do something about it," Mr. Schumer said. "We went to our caucus, and there was almost unanimous acceptance."

Charles Schumer, Constitutional scholar, unfortunately must have given up the strenuous task of studying the document after the first page:

The Constitution gives the president the authority to make recess appointments, but such appointments are temporary; lifetime appointments require Senate confirmation. Recess appointees may serve until the end of the next session of Congress.

So now the Democrats, not satisfied with gumming up the works on selected candidates, insist on destroying the entire process because Bush used a well-known and perfectly legal Constitutional process to work around their intransigence. In fact, it was the same process used by Clinton to appoint a federal judge and a diplomatic post, but then the action was "courageous" instead of "a finger in the eye of the Constitution.

It's an election-year power play, and one that should backfire on the Democrats. Bush's conservative base has made noises this year about staying home because of his lack of fiscal constraint, but if Tom Daschle sets off a war over judicial nominees, you can bet your last dollar they'll all show up at the ballot box. Bush may not excite them, but the federal judiciary is a particular hot button on the right, and you can bet that the Republicans will use this to remind people that there may be as many as four Supreme Court seats that will open up in the next four years. Tom Daschle may rue the day he set off this escalation; in a state as conservative as South Dakota, Daschle will run into a buzz saw in his re-election bid with a strong conservative turnout.

The real issue that has turned what used to be a collegial and fairly non-controversial task into a political quagmire is the increasing judicial activism of courts in general, and the federal appellate courts specifically. William McGurn writes on today's OpinionJournal editorial about the corrosive effects that judicial activism has had on the political process:

As Roe ought to have taught us, when the courts substitute their own social decisions for those properly exercised by the people through their elected representatives, the battlefield moves from the ballot box to the Judiciary Committee. Absent some sharp legislative corrective, the likeliest outcome of the "tolerance" demanded by Lawrence and its progeny will be the tarring of judicial nominees as extremist for holding views shared by two-thirds of the American people.

McGurn specifically reviews the nomination of William Pryor, whose breathtaking inquisition -- there is no better word for it -- by the Senate Judiciary Committee focused on Pryor's religious affiliation. (McGurn's speculative dialogue is based on Schumer's questioning of Pryor on abortion.) Led by Senator Schumer, the Democrats focused on Pryor's Catholocism as a disqualification for the judiciary, a threshold that should surprise the many Catholics who already sit on appellate courts. Their message was that Pryor's faith made it impossible for him to apply the law, setting up a religious qualification for public service -- which is a direct violation of the First Amendment, truly putting a finger in the eye of the Constitution.

When judges stick to applying law, as Pryor did in his position as Alabama's Attorney General when he had Justice Roy Moore impeached for not removing the notorious Ten Commandments monument, then the judicial nomination process really need only focus on the competence of the nominee. However, when we allow judges to craft legislation and dictate public policy, as they did in Roe and Lawrence whether you agree with the outcomes or not (no and yes), then their political and cultural idiosyncracies take center stage and set off these kinds of partisan knee-biting.

One way or another, Congress and the Executive needs to come to grips with judicial activism, as the gay marriage wars this winter have aptly demonstrated. Either Constitutional curbs on the power of the judiciary have to be put in place, or we need to start holding direct elections for the federal judiciary. Allowing political and cultural matters to be subject to the diktat of life-appointed members of star chambers reduces us from a democratic republic to a secular theocracy, run by high priests in black robes, and steals power from the people and their representatives in Congress.

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Posted by Ed Morrissey at March 27, 2004 8:22 AM

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The Retaliacrats have issued another threat to President Bush: Senate Democrats, turning up the heat in their long-simmering feud with President Bush over judicial nominations, vowed on Friday to block all new federal court appointments unless the Whi... [Read More]

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