Obstructing justice

Senate Democrats resumed their judicial nomination-obstruction campaign on their first day back from the August recess. Senator Charles Schumer, D-N.Y., chaired another in his series of hearings designed to change the confirmation rules and create new reasons for Democrats to oppose President Bush’s nominees.

The first hearing on June 26 focused on substance. Left-wing academics and lawyers told senators to base their votes on a nominee’s ideology, that is, the rulings they will likely render once on the bench. The second hearing on September 4 focused on procedure. Left-wing academics and lawyers told senators to base their votes on whether nominees have made the case for confirmation rather than on deference to the president. As Senator Schumer put it, “the burden should rest with the nominee.”

Like the ones to follow, these are not serious hearings exploring real issues. They are public relations stunts aimed at changing the confirmation rules and stacking the deck against Bush nominees.

This hearing was supposedly about whether the nominee or the Senate bears the burden in the confirmation process. Put differently, does a nomination come to the Senate with a presumption in favor of confirmation? If this were a real question, the real answer would be yes. In Article II, Section 2, the Constitution gives the president both the power to nominate and, subject to the Senate’s “advice and consent,” the power to appoint federal judges. As Alexander Hamilton put it in “The Federalist No. 65,” “in the business of appointments the executive will be the principal agent.” That’s why there’s not a word about appointments in Article I, which outlines the powers of the legislative branch.

The Senate is a check on the president’s appointment power, as Hamilton wrote in “The Federalist No. 76,” to “prevent the appointment of unfit characters.” That’s the system of checks and balances America’s founders established, the one we all learned about in junior high civics class.

This is not rocket science. A primary power – in this case, appointing judges – carries more weight than a check on that power. And in the judicial selection process, a president’s nomination obviously creates a presumption in favor of confirmation. Put differently, once the president makes a nomination, the burden shifts to the Senate to demonstrate why that nomination should not be confirmed.

One caveat. The Senate owes the president more deference for nominees to the executive branch than for nominees to the judicial branch. Executive branch nominees (e.g., Cabinet secretaries) serve at the pleasure of the president to implement his policy agenda – they are the president’s team. Judges, on the other hand, serve “during good behavior” to interpret and apply the law – they are not on anyone’s team. So the confirmation presumption, though not as strong, still exists for judicial nominees.

At the hearing, Mr. Schumer said America’s founders would be shocked at the state of the confirmation process today. Indeed they would. Those who crafted the Constitution, who believed that the president would be the “principal agent” in judicial selection, would be shocked at Senator Schumer insisting that the Senate is a “co-equal partner” with the president. Those who created the process of presidential nomination and appointment would be shocked at Mr. Schumer insisting that the Senate instead treat nominees as if they were applying for the job, no different than applicants to flip burgers at Wendy’s.

Senator Strom Thurmond, R-S.C., voiced the position America’s founders would recognize. He said Senators should consider a nominee’s qualifications and judicial philosophy, whether he understands the proper role of a judge. Senators should give some deference to the president, deference that does not change when the political party controlling the Senate or the White House changes. The Senate’s constitutional responsibilities, Mr. Thurmond said, must remain consistent.

Consistency requires that, instead of holding these fake hearings and trying to stack the confirmation deck against President Bush, Mr. Schumer would practice what he has been preaching. In January 1998, for example, he called on the Senate leadership to “work with the president to confirm more judges.”

Consistency means he’d direct this at leaders such as Senator Patrick Leahy, D-Vt., chairman of the Judiciary Committee on which Mr. Schumer serves. You know, the Senator Leahy who said on July 25, 2000, that Senators “must redouble our efforts to work with the president to end the longstanding vacancies that plague the federal courts and disadvantage all Americans. That is our constitutional responsibility.” The Senator Leahy who said the slow confirmation pace last year was “humiliating to the Senate” and “beneath this great body.” That was when there were just 59 judicial vacancies. With nearly 110 vacancies today, you’d think Mr. Leahy would be re-quadrupling his efforts to confirm even a few of the 40 nominees at his doorstep.

Consistency requires Mr. Schumer to call on senior Democrats such as Senator Ted Kennedy, D-Mass., who in September 1999 said it was the Senate’s “constitutional responsibility to work with the president” to confirm more judges. That was when there were just 68 vacancies.

Actually, in the brave new world of political word-games, Senate Democrats might be consistent after all. It all depends on what the word “president” means. The only presidents that senators such as Schumer, Leahy and Kennedy want to work with are Democrats who nominate the liberal activist judges they need to impose their political agenda on the country.

I predicted back on May 31 that Democrats would “shut down the judicial confirmation process.” They are doing just that. Public presidential leadership is necessary to break the logjam. Judicial vacancies are the highest in more than seven years and confirmations are the slowest in recent memory. Senate Majority Leader Tom Daschle will soon say the press of legislative business leaves no time to consider judicial nominees. The clock is ticking and President Bush must turn up the heat and tell Americans the truth about the Democrats’ obstruction campaign.