When Democrats take control of the Senate next week, they will shut down the judicial confirmation process.
While majority status – and with it control of the Senate’s agenda and process – provides them new weapons, the Democrats’ unprecedented campaign to block President Bush’s judicial appointments began months ago. What they had begun to do defensively, however, they now can do offensively. The Democratic obstruction campaign includes a series of tactics and misleading rhetoric.
According to the New York Times, for example, incoming Judiciary Committee Chairman Patrick Leahy plans to “block any judicial nominees … [who] would tip the balance of the federal courts.” That’s the tactic. Here’s the rhetoric: Tipping whatever balance Democrats wish to preserve would be, in Senator Leahy’s words, “ideological court-packing.”
This argument is not new. Democrats took control of the Senate with a Republican in the White House in 1987. They used the book “God Save This Honorable Court” by Harvard law professor Laurence Tribe to change the rules confirmation engagement. Focusing on the Supreme Court, he urged the Senate to reject even eminently qualified nominees who would change the Court’s “balance” in either a liberal or conservative direction. The Senate, he wrote, was “a ballast” needed to correct “the drift of the Supreme Court as represented by a given appointment.”
Well, here we go again. Professor Tribe met with 42 Senate Democrats in April to again plot confirmation strategy. With their majority windfall, Senator Leahy is again singing from the Tribe script but this time applying its radical tune to all judicial appointments.
Senate Democrats don’t care that the Constitution gives the power to appoint judges to the president, not to them. And they don’t care about any sort of “balance” in general. Rather, dressed in Professor Tribe’s misleading rhetoric for public relations consumption only, they care about preserving a particular “balance” because they like the decisions that balance produces.
When they sang Professor Tribe’s tune in 1987, Senate Democrats sought to preserve a Supreme Court balance that had produced decisions on abortion and other subjects generally to their liking. Suiting up again as Professor Tribe’s loyal confirmation soldiers, they want to preserve an overall balance produced by President Clinton’s 374 judicial appointments. With 55 percent of all full-time judges Democrat appointees, it’s no wonder they are now playing the “balance” game.
As in 1987, it’s a tough sell to claim that President Bush may not appoint qualified men and women who will interpret rather than make law. Lots of junior high kids still learn in civics class that judges aren’t supposed to make law. Coached by Professor Tribe, Senate Democrats instead want to change the subject altogether and use the rhetoric of maintaining some sort of balance, of preventing that “ideological court-packing” thing.
There’s a certain weird consistency here. The activist judges whose power these Democrats now want to preserve, change and morph the Constitution and statutes, tweaking the meaning here and adding a few provisions there, rearranging the law as they go along to suit their political taste. Then, when judges have reworked everything to the liberals’ liking, we hear the call to respect judicial precedents and honor the “rule of law.” Whether it’s this fake, politically-driven devotion to the rule of the law or the present call for preserving the “balance of the federal courts,” Senate Democrats simply want a judiciary imposing liberal results the people have rejected.
How will Senate Democrats implement this “balance” rule, especially now that it apparently applies to the entire judiciary? Of the 101 vacancies on the federal district and appeals courts today, 61 had been filled by Republican appointees, 27 by Democrat appointees, and 13 resulted from creation of new positions. Will they demand that President Bush appoint only Democrats to replace vacating Democrats? This approach will, of course, require some regulations guiding President Bush’s appointments to those 13 new positions that have never been filled.
President Bush’s recent nomination of Democrat Roger Gregory to a previously unfilled appeals court position apparently does not balance his nomination of Republican Terrence Boyle to a seat formerly held by a Carter appointee. Trained in confirmation politics by Professor Tribe, Senator John Edwards (D-NC), is using the “balance” argument to oppose the Boyle nomination until President Bush nominates liberal state court judge James Wynn to another appeals court vacancy.
Senator Leahy’s “balance of the federal courts” rule might refer to ideology rather than simply to party affiliation. This, of course, lacks even a claim of objectivity and would require the very ideological litmus tests that Democrats once condemned.
The wild card in all this is the position of incoming Majority Leader Tom Daschle. On May 6, before Senator James Jeffords’ party defection made him majority leader, he insisted “we don’t want right-wingers” on the bench. On May 26, after the defection, he said he does not support Senator Charles Schumer’s vow that “no more of these right-wing judges [will] be getting through.” Senator Daschle is simply playing the good cop to Senator Schumer’s bad cop. Senator Schumer, who serves on Senator Leahy’s Judiciary Committee, is already the de facto leader of the confirmation wrecking crew. The bad cop will win.
Senate Democrats are poised to once again drag judicial confirmations into the political swamp. They are using the same song-sheet, prepared by the same composer, as they have before. Tragically, this strategy will once again politicize judicial selection and threaten judicial independence.
