President Bush made a strategically smart move in the 15-year-old war of the judges by announcing on May 9 a slate of 11 nominees carefully balanced both to please conservative activists and to disarm mainstream Democrats whose help he will need to avoid partisan gridlock.
The 11, who would sit on federal appeals courts across the country, include two African-Americans previously nominated by President Clinton, one Latino immigrant with 15 Supreme Court arguments under his belt, three judges who happen to be women, two others who happen to be protégés of Republican Senators, and three of the nation's top Supreme Court litigators. At least eight of the 11 are conservatives, several have stellar professional credentials, and most seem easily confirmable. At the same time, Bush put off announcing several other highly qualified judicial candidates, in the hope that White House Counsel Alberto R. Gonzales can persuade certain Senate Democrats to withdraw their objections to them.
Although a veneer of bipartisan bonhomie graced the May 9 White House ceremony, and Senate leaders have papered over their dispute about whether individual Senators should have veto power over judicial nominees from their states (under the so-called "blue-slip" policy), ideological warriors on both the left and the right are, as usual, unhappy.
The Bush nominees are "ultraconservative" and "packaged to push the envelope far to the right," declared People for the American Way. The New York Times warned that Bush and Senate Republicans were plotting "a speedy hard-right makeover of the nation's federal courts." Professor Bruce Ackerman of Yale Law School even urged Democrats to "block all Supreme Court nominations until the next presidential election." And Sen. Barbara Boxer, D-Calif., has already blocked the planned nomination of Rep. Christopher Cox, R-Calif., to the federal appeals court for California and eight other Western states. Cox is too conservative for Boxer—who is, according to National Journal's annual vote ratings, a good deal further to the left of center in Congress than Cox is to the right.
These are the folks who define as "right wing" the views held by a majority of Americans on issues such as racial preferences (opposed by more than 80 percent of respondents in a recent Gallup Poll), unrestricted late-term abortions (almost as unpopular), and gay and lesbian rights. The ultraliberal call to arms proceeds in part from the claim that, as Ackerman puts it, the December 12 Supreme Court decision that made Bush President by ending the Florida recount was "a blatantly partisan act, without any legal basis whatsoever." The same Ackerman also acknowledged that he agrees with the legal basis articulated by the Justices for striking down the Florida Supreme Court's chad-counting standard. This tour de force in self-discreditation qualifies him for the silliest-scholar medal in the current battle.
The hypocrisy prize, on the other hand, has to go to Senate Republicans, including Majority Leader Trent Lott of Mississippi and Jeff Sessions of Alabama. They have pronounced themselves shocked—shocked!—to see their Democratic colleagues threatening the same obstructionist stalling of judicial nominees that they themselves used to bring the downward spiral of partisanship and payback to a new low during the Clinton Administration.
These are the folks whose anonymous "holds" and other gimmicks left one well-qualified Clinton nominee (Richard A. Paez) hanging for four years—an all-time record, it appears—before he was confirmed last year. And who for eight years helped Sen. Jesse Helms of North Carolina prevent Clinton from filling a vacancy on the U.S. Court of Appeals for the 4th Circuit, which includes Maryland, Virginia, West Virginia, and the Carolinas. Not to mention then-Sen. John D. Ashcroft's smearing of another nominee, Judge Ronnie White of the Missouri Supreme Court, as a "pro-criminal" jurist with "a tremendous bent toward criminal activity."
When Clinton was President, Lott asserted that "there are not a lot of people saying, 'Give us more federal judges,' " and that "getting more federal judges is not what I came here to do." Now he stresses that Democrats should not "delay the appointment of people to the courts." Sessions, who played a conspicuous role in blocking Clinton nominees, says now that "a single Senator [should not be allowed] to just block someone without any chance of review."
The danger in all of this is that Democrats' understandable urge to do unto Bush's nominees what Republicans did unto Clinton's will perpetuate the partisan pollution of the confirmation process. The result would be more vacancies on the federal courts, a degrading of the quality of the judiciary, an undermining of respect for one of the few institutions that most Americans still trust, and, inevitably, harm to the rule of law.
The best way to arrest this insidious trend is for statesmen (and women) in both parties to recognize that although the confirmation process is unavoidably political (the political predispositions of judicial appointees often predetermine the outcomes of the nation's most-important cases), it need not lead to gridlock or mediocrity.
This means that Bush should fight hard for outstanding conservative candidates such as Cox and Washington lawyer Peter Keisler, whose planned nomination to the 4th Circuit has been stalled by Maryland's Democratic Senators, Paul S. Sarbanes and Barbara A. Mikulski, ostensibly because Keisler is not a member of the Maryland bar and does not work there. (Who cares, besides Sarbanes and Mikulski?) And Democratic leaders should not support single-Senator vetoes by liberal ideologues such as Boxer.
It also means that Bush must compromise with the Democrats. He should not try to pack the courts with conservative clones of Supreme Court Justices Antonin Scalia and Clarence Thomas—whom he singled out as models during last year's campaign. Rather, Bush must mix in enough moderates to allay Democratic concerns that the only way to avert a sharp shift to the right is to block even the most outstanding conservative nominees.
The political realities are explained by Sen. Patrick Leahy of Vermont, the Judiciary Committee's senior Democrat: "Because of the closeness of the election, because of Bush vs. Gore and the feelings that it engendered, because of it being a 50-50 Senate, because the Supreme Court could be changed on everything from abortion to individual rights to privacy, I think there will be more scrutiny than there has ever been in the 26 years I've been here. It all heightens the stakes."
Not to mention the precarious liberal-conservative balance on many federal appeals courts—which issue the final decisions in more than 100 cases for every one decided by the Supreme Court—and the Democrats' incentives to keep vacancies (currently numbering 100 or so) open for as long as possible in the hope of taking control of the Senate in November 2002 or before.
"If the Republicans don't play fair," adds Leahy, "we'll just bring everything to a screeching halt, which in a 50-50 Senate is pretty easy to do."
Bush seemed to recognize this in choosing his initial batch of nominees, including Roger L. Gregory, a moderate Richmond lawyer who was nominated by Clinton, blocked by Helms, and finally given a temporary recess appointment before Clinton left office. Gregory would be the first African-American ever confirmed to sit on the 4th Circuit, where blacks are an unusually large percentage of the population.
Bush may also have to make a deal with Sen. John Edwards, D-N.C., who has suggested that he will block another of the President's 4th Circuit nominees—Terrence W. Boyle, a fervently conservative Helms protégé who now sits on a U.S. District Court in North Carolina—unless Bush further balances his 4th Circuit ticket by adding another nominee more palatable to Edwards.
At the same time, Democrats should recognize that the tradition of allowing a single Senator—usually, but not always, from the nominee's home state—to prevent a nomination from coming to a vote is a bad one. It is especially unwarranted when the vacancy to be filled is on one of the appeals courts, which have multistate jurisdiction.
It may be too much to ask that Democrats refrain from abusing a tradition so mightily abused by Republicans in the recent past. But somebody needs to break the cycle of payback that has left so many good nominees twisting in the wind. Better to let them come to the floor as soon as they have been adequately vetted and vote them down openly—or even stop them with a filibuster—if they seem too conservative.
Then, when the shoe is once again on the other foot, Senate Republicans may be shamed into decency in their treatment of Democratic nominees. The next Democratic President, and nominees from both parties, would be grateful.