Appoint
Them All, Mr. President
For
three years, the President of the United States did the right thing
with regard to judicial appointments. He looked at judicial vacancies
throughout the federal courts, at both district and appellate levels.
He found people of impressive credentials he believed would interpret
the laws of the land, not make new law, and not act as entrepreneurs
of radical views. He nominated them, according to constitutional
procedure.
He
waited for them to be confirmed by the U.S. Senate, according to
constitutional procedure. He waited and he waited and he waited.
He heard his nominees shamelessly slandered, their records distorted
beyond recognition by leftist groups and their Senate minions on
the Judiciary Committee. He saw cynical, calculated delay when the
Democrats controlled the Senate, outright obstruction when Republicans
gained the narrowest of majorities.
When
it became obvious that all of the Presidents judicial nominees
could be confirmed in straight up-or-down bipartisan votes,
virtual filibusters were invoked, it being an untenable burden on
the distinguished ladies and gentlemen of the Senate to have to
suffer through the real thing anymore. While the confirmation votes
were there, the three-fifths majority (60 votes) necessary to break
filibusters have not been. After two years of being used as a punching
bag, one nominee withdrew.
The
liberal groups chortled; Democrat Senate invective soared; Republicans
wrung their hands. What to do? What to do? Cant do this. Wont
do that. The other didnt work. Oh woe.
The
President went about his other work, of which he has some.
One
day a handful of Democrat Senate Judiciary Committee strategy memos
got leaked to the Wall Street Journal and Washington Times.
The tactics that had been known got documented: Theres almost
nothing these people wont do to stop the Presidents
judicial nominees.
Memogate
was born, crying scandal with every breath, just on the basis of
the few memos publicly exposed, with thousands more threatening
to reveal in sordid detail exactly how the process has worked. But
theyre locked up. Calls for investigation of the content of
the memos are met with uncharacteristic silence. Politicians, who
have opinions on what you should eat for breakfast, stare vacantly
at their shoes. For this one, the mainstream media have curiously
lost their zeal for the publics right to know, have suppressed
their typical rampage against government secrecy.
Then
the President once again did the right thing, under the circumstances.
Over the Christmas Congressional Recess, he made the recess appointment
of Judge Charles W. Pickering to the Fifth Circuit Court of Appeals.
The President can do that, legally and constitutionally. The appointment
will last only about a year. But no one can stop it.
The
President wasnt done. On February 20, he made the recess appointment
of Alabama Attorney General William Pryor to the 11th
Circuit Court of Appeals.
The
President hasnt signaled what he will do next. We hope he
will fill every vacant seat on the federal judiciary with recess
appointments. Appoint them all, Mr. President. When those appointments
expire, appoint some more.
No,
this is not the way the process should work. Its not practical.
Most nominees cannot disrupt their lives for short-term appointments.
Its far from the best way to staff our courts. But its
constitutional, and the filibusters that have blocked your nominees
are not. Its decisive. Its transparent, unlike the tactics
that have been used to derail the process in the Senate.
The
blocking tactics will continue. At this writing, Senator Ted Kennedy
has indicated that he may attempt a legal challenge to the Pryor
appointment on the basis of whether the recess during which he was
appointed was a recess by the legal definition of recess. Minority
Leader Tom Daschle is contemplating a move to cancel Senate recesses.
Both efforts are likely to fizzle, but even if they do not, they
just focus more public attention on the obstruction.
In
the meantime, Judges Pickering and Pryor have a year. We think they
will distinguish themselves on their respective courts. If their
Senate detractors could just stop wallowing in liberal money for
a while, they would be advised to attempt the same restoring
honest deliberation, dignity and decorum to an institution that
today seems more like a snake pit.
[Posted
February 26, 2004]
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