Time and time again, we have criticized Democrats for their unprincipled position of pushing politics where it doesn't belong -- onto the federal bench. But now, we find that a couple of Republicans are just as wrong in their "principled" refusal to play politics where it is both expected and appropriate -- in the U.S. Senate.
This week, The Hill reported that Senators Chuck Grassley (R-Iowa) and Jeff Sessions (R-Ala.) "are holding up the nomination of Peter D. Keisler" to the U.S. Court of Appeals for the D.C. Circuit. The move is surprising, as the newspaper explained, since the two Senate Judiciary Committee Republicans have been "the staunchest supporters of President Bush's nominees," and because Keisler is the "administration's top priority on judicial nominations this fall."
Indeed, Keisler is a stellar choice to sit on what many regard as the second highest court in the country. Not only has he been the Assistant Attorney General in charge of the largest litigating division of the Justice Department, the Civil Division, for the past three years, but ever since graduating from Yale Law School 21 years ago Keisler has excelled in both private practice and public service.
Keisler clerked for then-D.C. Circuit Judge Robert Bork, served as an Associate White House Counsel for President Ronald Reagan and then clerked for Justice Anthony Kennedy -- and that was only during his first four years after law school. Keisler then entered private practice at one of the nation's largest and most respected law firms, Sidley Austin, and rose to become a leading partner before being selected by the Bush Administration for important posts at the Justice Department.
But qualifications are not the hang up for Senators Grassley and Sessions. Rather, they are hesitating to confirm Keisler to the D.C. Circuit as the 11th active judge because they previously "argued 10 judges were sufficient to handle the caseload when President Clinton tried to appoint another," according to The Hill. "Grassley and Sessions do not oppose Keisler himself," as the newspaper so clearly explained, "but are trying to support him without blatantly contradicting their earlier position." In other words, the two politicians are evidently holding up Keisler's confirmation on "principle."
Unfortunately, their "principle" is not only problematic, it is pure fiction ever since the Senators' own previous votes a year ago to confirm another judge to the 11th seat on the D.C. Circuit. Back then, just like today, the D.C. Circuit already had 10 active judges, but that did not prevent Senators Grassley and Sessions from confirming Thomas Griffith to the bench. Since then, John Roberts left the D.C. Circuit to become Chief Justice of the United States, Harry Edwards took senior status, and the Senate confirmed Brett Kavanaugh, meaning that the D.C. Circuit was back down to just 10 judges again. Now, apparently, the Senators aren't willing to bend their "principled" stance again to re-fill that 11th seat by confirming Keisler.
But with polls showing that the Republicans will lose seats, if not the majority, in the Senate in November, and the possibility looming large that a donkey might move into the White House after 2008, now is not the time for Republican Senators to refuse to confirm judges, any of them.
After all, as the Senators know and acknowledge, there aren't many better choices than Keisler, and the unprincipled Democrats who want to inject politics into the judiciary will most assuredly put up someone a lot worse in the future. Moreover, if and when that happens, Senators Grassley and Sessions will have no "principled" high ground to stand on because they already forfeited that position by confirming Judge Griffith to an 11th seat last year.
In other words, Senators Grassley and Sessions should remember who their friends are. Because if they continue to hold up Keisler's confirmation, Senators Grassley and Sessions might as well be the enemies in the ongoing judicial confirmation battle.September 14, 2006
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