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Three judicial-confirmation milestones on April 28 prove that the process is completely broken.
First, Senate Democrats launched another filibuster. This one, against appeals-court nominee Priscilla Owen, is because of what Democrats say they know about her. It complements the first one, against appeals-court nominee Miguel Estrada, which is because of what Democrats say they don’t know about him.
It wasn’t supposed to happen this way. Back on Feb. 14, Sen. Richard Durbin, D-Ill., insisted that the Estrada filibuster had to do only with lack of information about the nominee’s views, not the views themselves. He said his fellow Democrats “to a person” agreed with him that as long as senators “know for whom we are voting,” a vote should happen. And on Tuesday, Sen. Charles Schumer, D-N.Y., similarly said that a different appeals-court nominee approved that day avoided a filibuster because he had “answered questions.”
Priscilla Owen had not one, but two, hearings before the Judiciary Committee. Senate Democrats, including Durbin and Schumer, argued the second hearing was unnecessary because they know everything there is to know. The Durbin-Schumer standard obviously requires a vote on the Owen nomination.
The jarring inconsistency of also filibustering Priscilla Owen reportedly did give some Democrats pause (though probably not to a person). But even that momentary lapse in compliant obedience was quickly squashed. The abortion extremist groups that control the Democrat caucus said they would “score” a vote on whether to filibuster the Owen nomination. That is, the vote would be used to determine how pro-abortion senators really are. The need to be on NARAL President Kate Michelman’s “A” list was too important. To paraphrase Emerson, confirmation consistency is the hobgoblin of little minds, avoided by little politicians.
A second April 28 milestone came with the confirmation of Jeffrey Sutton to the U.S. Court of Appeals for the Sixth Circuit. He was in President Bush’s first batch of 11 appeals-court nominees and, with his confirmation, a bare majority of that group has finally been approved.
Here’s how math works in Leftistland. It took 720 days for six of 11 Bush nominees to be approved. The previous three presidents saw 11 of their first 11 nominees confirmed in an average of 81 days. Those two scenarios are equal to Sen. Schumer, who proclaimed on Tuesday that Democrats were not “being obstructionist.”
Or consider this from another leftist math whiz. Sen. Durbin said on Tuesday that, without Mr. Sutton, “the Sixth Circuit is evenly balanced now.” He said that, it’s on page S5442 of the Congressional Record. Yet on that day, the court’s 10 full-time judges included six Democrat and four Republican appointees. Even with Mr. Sutton’s appointment, the court is not “evenly balanced,” at least as most normal Americans would measure it. I think perhaps it’s Sen. Durbin who may not be evenly balanced.
Or how about this one from Sen. Tom Harkin, D-Iowa. He denounced what he claimed was a Republican scheme to “rush a vote” on Mr. Sutton. He even said that Republicans’ effort to “ram this [nomination] through” meant that “we cannot debate it.” He said that – it’s on page S5445 (the second day of the Sutton non-debate, by the way). Mr. Sutton had been scheduled for a Judiciary Committee hearing in May 2001. Probably knowing that the partisan tables would soon turn and they would become the majority, Democrats scuttled that hearing and then simply ignored Mr. Sutton thereafter. Hundreds and hundreds of days later, now it’s a rush job?
The other significant numbers from the Sutton confirmation show that the Democrats’ obstruction machine gains something even when it loses. Only one judicial nominee in the last quarter-century has been confirmed with fewer than the 52 votes Mr. Sutton received. And the negative votes once again topped 40, the magic number needed to support a filibuster.
The third milestone is that Senate Democrats have finally admitted why they are so enamored of litmus tests and nominees’ personal views. Sen. Durbin described the “extraordinary power” of federal judges this way: “Most of us in the Senate will come and go, and they will still be sitting on the bench with gavel in hand, in their black robes, meting out justice according to their own values. So it is important that we ask questions and make inquires as to what those values might be.”
That’s what leftists really believe, that judges decide their cases “according to their own values.” Not according to law, but their own values. Since judges decide cases according to their own views, nominees with insufficiently leftist views are unlikely to render sufficiently leftist decisions. Hence, to leftists, such folks are simply unqualified to sit on the bench.
All of that in just two days, loads of proof that the confirmation process is broken and needs to be fixed.