They say your walk talks louder than your talk. Though the Bush administration’s talk about appointing good judges was good, their walk increasingly tells a different story.
Judicial selection was not center-stage in last year’s presidential campaign. Candidate George W. Bush said he would pick judges who would follow the law rather than make it up and that was pretty much the extent of it.
Judicial selection appeared to move up the priority list after inauguration day. The liberal media were buzzing with conspiracy theories, usually involving the Federalist Society, about how the Bush administration would boldly recapture the judiciary. President Bush announced his first nominees on May 9, months earlier than previous presidents, with an unprecedented ceremony in the East Room of the White House. He made a record 44 nominations by the Senate’s August recess.
The whole point of judicial selection, however, is appointment rather than nomination. Nominees do not become appointees without Senate approval and Democrats mobilized to block President Bush’s judicial appointments long before Senator Jim Jeffords’ defection gave them the majority.
What should a president serious not only about nominating, but actually appointing, good judges do faced with such opposition? Those obscenely paid political strategists get almost everything wrong, so don’t ask them. Just use your common sense and, at least this once, follow President Clinton’s example.
Mr. Clinton accused the opposition party controlling the Senate of obstructing his judicial appointments and took that accusation very public. He included it in the State of the Union Address, speeches before interest groups and party functions, his weekly radio address, press conferences and at photo ops. His operatives pushed the theme on the TV talking head shows. Senate Democrats gave never-ending speeches and issued a forest’s worth of press releases and statements. Liberal interest group leaders echoed the same theme ad nauseam.
Today, this supposed Republican obstruction is the No. 1 justification for Senate Democrats’ campaign to block Bush nominees. The only problem with this smart political strategy is that it is based on a false claim. While facing that supposed Republican obstruction machine for six of his eight years in office, Mr. Clinton had a judicial appointment record of 374-1. Just five more appointments would have set an all-time record.
The true confirmation facts support President Bush pursuing this take-it-public strategy. Democrats have always been more aggressive than Republicans in using the confirmation process to their advantage. Filibustering judicial nominees, denying them Judiciary Committee hearings, blocking final Senate votes – Democrats have used these and other tactics more than Republicans ever have. And with judicial vacancies the highest in more than seven years and climbing, it’s the only strategy with potential for success. If Mr. Clinton could use it to his advantage while making up false facts, President Bush can be even more effective telling the truth.
The administration’s silence since announcing the first nominees on May 9 has thus been both confusing and alarming. Are they serious about appointing good judges or content simply with picking good nominees?
In an interview with CNN on August 14, White House Counsel Alberto Gonzalez broke that silence, lamenting that the Democrat Senate may confirm just five judges this year. It’s what came next that boggles the mind and suggests the administration is not serious after all about appointing good judges.
Did he point out that these are the same Democrats who said for six years that the Senate’s duty is to confirm judges? Did he say that this is part of a partisan pattern by Democrats? Did he warn that judicial vacancies are already much higher than when Republicans ran the Senate?
Mr. Gonzalez said none of these things. Instead, he said, “I can’t argue with” the “perceptions” of Democrats that Republicans had improperly obstructed Clinton judges. I’ve heard of conceding facts, but conceding perceptions (which can be created by anyone at any time for any reason)? And doing so in a public interview about a serious political fight?
Those Democrat perceptions are simply not legitimate and are based on false facts. Rather than saying so, Mr. Gonzalez said that the current Democrat obstruction campaign is caused by “the conduct of the Republican senators in the past. We had nothing to do with this problem. But it does affect us.”
Can you hear the sound of my jaw dropping? The first peep we hear out of the White House about the Democrats’ obstruction campaign is to accept and validate it! You’d think a lawyer like Mr. Gonzalez would deal with facts rather than “perceptions.”
According to CNN, Mr. Gonzalez “said each of the three previous presidents won confirmation for more than 40 judicial nominees in their first year in office.” Presumably, he was trying to say Democrats should confirm Bush nominees today because the confirmation process has been smooth and productive in the past.
If Mr. Gonzalez actually said that, he was wrong by a Texas mile. According to the Congressional Research Service, the Senate – run by Democrats, mind you – confirmed just 15 judges in 1989, President George Bush’s first year in office. That’s a modern record low, and exactly the kind of ammunition the Bush administration should now use to confront Senate Democrats.
A fact sheet produced by Mr. Gonzalez’s own office says that President Bush submitted 23 nominations to the Senate in 1989. How could he claim that more than 40 judges were confirmed in a year when only 23 nominations were made?
Mr. Gonzalez not only blew it by more than 250 percent about President George Bush, he even got it wrong about President Clinton. The Congressional Research Service again confirms that the Senate approved 27 nominees in 1993, his first year in office.
If the Bush administration actually intends to appoint good judges, it will take this issue public and focus consistently on the partisan, hypocritical obstruction campaign by Senate Democrats. The real facts are on their side. That the administration is instead justifying that obstruction campaign, and making wildly false claims along the way, suggests appointing good judges may not be on their priority list after all.