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 President’s 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? Can’t do this. Won’t do that. The other didn’t 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: There’s almost nothing these people won’t do to stop the President’s 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 they’re 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 public’s 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 wasn’t done. On February 20, he made the recess appointment of Alabama Attorney General William Pryor to the 11^th Circuit Court of Appeals.

The President hasn’t 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. It’s not practical. Most nominees cannot disrupt their lives for short-term appointments. It’s far from the best way to staff our courts. But it’s constitutional, and the filibusters that have blocked your nominees are not. It’s decisive. It’s 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.

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