Believe it or not, the filibuster against appeals-court nominee Miguel Estrada is not the most underhanded or outrageous obstruction game in town.
Another front in the nominee-obstruction war has opened in the Midwest, and this one is following different rules of engagement. Michigan’s Democrat senators, Carl Levin and Debbie Stabenow, are blocking all four nominees to their state’s open seats on the U.S. Court of Appeals for the Sixth Circuit. That court still has a total of six vacancies (the other two belong to Ohio), giving it the highest appeals-court vacancy rate in the country.
This crisis – named a “judicial emergency” by the federal judiciary’s administrative office – is not President Bush’s fault. He long ago sent highly qualified nominees for all six vacancies to the Senate. Three of these four Michigan nominees have waited more than 16 months without a hearing, and the fourth has sat for nearly a year. No senator, including Levin or Stabenow, has ever raised one objection to any of these nominees themselves. Instead, this little powerplay is about partisan political spite.
One of many “senatorial courtesy” perks allows senators effectively to veto judicial nominees named to serve in their state. Not a rule, just “courtesy.” Back in June 1989, when he chaired the Judiciary Committee, Sen. Joseph Biden, D-Del., wrote the first President Bush and said that this little system exists to encourage pre-nomination consultation with home-state senators. No consultation, no hearing.
Yet President Bush consulted plenty. And consulted, and consulted, and consulted. Neither Michigan senator claims he didn’t. No, they are using a system designed to encourage consultation to block nominees in spite of such consultation. They are blocking these nominees simply because President Bush did not pick the nominees they wanted him to: He did not re-nominate two unconfirmed Clinton choices. If that sounds a little petty, that’s exactly what it is.
You remember President Clinton. He was the previous president, out of office now for, oh, two years or so. And I’m sure you know President Bush. He is the current president, the one the Constitution empowers to make judicial appointments. This is what happens in a representative democracy, we have elections and get new presidents from time to time. And the president, not senators, gets to appoint judges.
Sens. Levin and Stabenow act as if presidents are somehow supposed to re-nominate the previous president’s unconfirmed “disappointees.” Not only does it not make sense to suppose that in the first place, but past presidents have never done it. Sen. Levin should know this, since he helped keep more than 50 of the first President Bush’s judicial nominees from confirmation in 1992. No one even thought to ask, let alone tried to force, President Clinton to re-nominate a single one. And he didn’t.
The filibuster against Miguel Estrada, though unprecedented, at least is authorized by an actual, written rule adopted by an actual Senate vote. There is a strong argument that this rule is unconstitutional, but at least it’s there. This Levin-Stabenow operation, in contrast, is being conducted without any such formal authorization, but merely a wink and a nod. It gets even more bizarre: The Senate refused to confirm those two Clinton nominees because President Clinton, you guessed it, refused to consult with both home-state senators.
In the mid-1990s, Michigan was represented by Levin and Republican Spencer Abraham (now Secretary of Energy). Sen. Abraham had agreed to support a Clinton nominee to one of Michigan’s two Sixth Circuit vacancies. He took a lot of flack for that from Michigan Republicans, but he was a gracious and helpful guy. The Clinton administration assured Sen. Abraham they would consult with him before nominating anyone to the other seat.
Sen. Abraham found out the Clintonites were indeed pursuing the other nomination. He found out not by prior consultation at all, but by reading about it in the Michigan papers. And when a third vacancy opened up soon after, they did it again. Bill Clinton broke his promise more than once. I’m shocked – I’m over it.
Remember the courtesy rule? No consultation, no hearing. That’s why the Senate did not confirm President Clinton’s choices. So today, Sens. Levin and Stabenow are blocking nominations about which President Bush did consult because they wanted re-nominations about which President Clinton refused to consult. This outrageous situation is about senators trying to dictate to the president how he must exercise his constitutional power to appoint judges. It violates the very oath those senators took to support the Constitution.
The best judgment on this sort of thing came in March 1997 from none other than Sen. Joseph Biden. In a Senate speech, he said that it is inappropriate to refuse to bring judicial nominations to the full Senate, inappropriate “not to allow a vote, and it is not appropriate to insist that we, the senators – we, the senators – get to tell the president who he must nominate.” I don’t suppose Sens. Levin and Stabenow would listen to him either.