Remember the name Roger Gregory. It is going to come in handy this year, if President Bush decides to play hardball with the Senate Democrats.
And get your checkbook ready. There are seven vulnerable Democratic incumbents in the world’s greatest deliberative body. And if that body chooses to follow the Daschle line and not to deliberate over the nominees for the federal bench which President Bush sends up Pennsylvania Avenue, then fair-minded Americans will have to pony up to push out those seven and return the Senate to the sort of Republican majority that can bring even an extremist like California’s Barbara Boxer to her political senses (she’s up in 2004).
Here’s the situation. President Bush needs to fill more than 30 federal appellate court vacancies, and a host of district court vacancies. Some of these vacancies occur in states with two Democratic senators (like California, where Boxer is joined by Diane Feinstein).
Republicans played rough with Clinton’s nominees in the last year of his presidency (as the Democrats did to Bush the Elder in 1992). Now George II is being threatened by Daschle and Boxer and the extremist wing of the Senate Democrats. If they don’t get a veto over lots of the vacancies, nobody gets confirmed. It is a radical extension of the occasional judicial skirmishing, and it was a strategy urged by Al Gore’s Supreme Court lawyer on the Democrats at a “retreat” in Pennsylvania in late April.
Thus far, the media has fallen for the line that this is just turnabout-is-fair-play, having neglected to look at the nominated/appointed ratio in the crucial first year of a president’s term when the Senate extends unusual deference to the president.
Bush should welcome this turn towards confrontation on the part of Democrats. Public opinion has never much favored the sorts of judicial appointees routinely put forward by the liberal wing of the Democrats. Voters prefer tough-on-crime, long-on-common-sense jurists. The narrow plurality among voters favoring abortion rights over the rights of the unborn will not shift because of unfounded allegations from the hard-core feminist set about nominees’ secret plans to undo Roe v. Wade.
If Daschle does indeed stick to his filibuster threat and block all nominees, the president has three excellent responses:
First, he ought to talk often and at length about the differences between his nominees and those of the Boxer Democrats. If Sens. Baucus of Montana, Carnahan of Missouri, Cleland of Georgia, Harkin of Iowa, Johnson of South Dakota, Landrieu of Louisiana and Wellstone of Minnesota want to link arms with Hillary and Barbara over their view of the federal judiciary, fine. That’s a political death sentence. Most of these senators already have two strikes against them having voted against John Ashcroft for Attorney General and having done nothing to stop the Gore campaign’s war of the absentee votes of the military abroad during the Florida fiasco. Shutting down the Senate in order to get liberal judges on the bench is not a great election strategy in places like South Dakota, Georgia and Louisiana.
Second, Bush ought to turn his rhetorical hooks into appeals for fund-raising. Sen. Tim Hutchinson of Arkansas is on the Dems’ target list for 2002. Daschle’s radical tactics already promoted me to send Hutchinson a contribution. You should do the same. The check should be made out to Hutchinson for Senate, and sent to P.O. Box 1150, Little Rock, AR 72203. Checks as little as $25 make a huge difference, and the maximum contribution prior to the primary is $1,000 per person. Be sure to fax a copy of your check as well as a promise to support those Republicans running against the insufferable seven listed above to Daschle, Pat Leahy (ranking Dem on the Judiciary Committee) and of course the seven endangered Dems. Their fax numbers are: Tom Daschle: (202) 224-7895; Patrick Leahy: (202) 224-3479; Max Baucus: (202) 228-3687; Jean Carnahan: (202) 228-0043; Max Cleland: (202) 224-0072; Tom Harkin: (202) 224-9369; Tim Johnson: (202) 228-5765; Mary Landrieu: (202) 224-9735; and Paul Wellstone: (202) 224-8438.
Finally, Bush has got to remember Gregory, and make sure the public does as well. Bill Clinton used Article II, Section 2, Paragraph 3 of the Constitution to appoint Gregory to the United States Court of Appeals for the Fourth Circuit without a Senate vote. Unless renominated and confirmed by Bush, Gregory’s appointment will expire “at the End of [the Senate's] next Session.”
Bush should make it clear that if the pace of confirmations is not moving along, he will withdraw his first-round names and send up some other names of lawyers willing to serve the short appointment, but to make their time count. I spent a year as a clerk on the United States Court of Appeals for the District of Columbia Circuit. A judge can get a lot of good work done in a couple of years. In fact, he or she can write some great opinions in just a few months. A couple of dozen recess appointments might be just the ticket to get the extremists back on the Constitutional reservation. And, after all, when Bill Clinton used the recess appointment power, none of the Senate Democrats complained.
It’s also a power to keep in mind come the first Supreme Court vacancy. If the extremist Democrats still have control of their caucus and block a qualified nominee, the president should use the recess appointment power to put a short timer with awesome talent on the bench and wait for the smoke to clear in 2002.
Democrats are said to be spoiling for a fight. Perhaps some fights will help them, but not this one. Barbara Boxer is the real face of the Senate Democrats and, as she and Tom Daschle lead the fight against competence and judicial restraint, the checks will roll in, the Democratic incumbents will roll out and the recess appointees can do some excellent work in the meantime.