Posted on 04/29/2003 8:08:58 AM PDT by AuH2ORepublican
April 29, 2003, 8:45 a.m. Benching Bork How to end the war over judges.
By Randy E. Barnett
With their unprecedented filibuster of Manuel Estrada, Patricia Owen, and others, Senate Democrats have once again raised the ante in the war over the present and future of the judiciary. The New York Times is opposing yet another Bush appointee, Carolyn Kuhl. The Washington Post has come out against yet another, Bill Pryor. And the list goes on.
With each escalation, Democrats have confronted Republicans with the option of either capitulation, by refusing to nominate any conservative appointees, or escalation. Rather than capitulate, Republicans have opted for a "tit-for-tat" strategy. Instead of inducing cooperation by the Democrats, however, these retaliations have induced Democrats to persistently double their bets with each Republican countermove, creating what legal theorist Larry Solum has called a downward spiral over the judiciary.
At the moment, Democrats and their activist cadres have obviously calculated that Republicans have no means of retaliating that would not hurt Republicans more than Democrats. So what if the Senate is tied up indefinitely by a filibuster? This only means that the Bush tax plan remains unenacted and the economy flat-lined until the next election. So what if no Medicare reform is adopted? This only preserves an issue for Democrats to run on in the next election cycle.
The one real power Republicans have over the Democrats in this fight is the recess-appointment power. It's the only threat that could force Senate Dems to budge. The Founders created the recess-appointment power to assure that the judiciary could continue to function if circumstances or political factions prevented the Advise and Consent process from functioning effectively. Recess appointments have an impeccable historical pedigree; beginning with George Washington, presidents have made recess appointments to Article III courts. Since the Founding there have been more than 300 recess appointments of judges. President Eisenhower and Kennedy made 53 such appointments between them. Lest we forget, both Earl Warren and William Brennan were recess appointments to the Supreme Court by President Eisenhower (later confirmed by the Senate).
The main problem with a recess strategy is that it makes the GOP's best nominees temporary second-class judges. Not only would this fail to realign the judiciary, but it would deter the most promising judicial candidates from accepting. For this reason, recess appointments, as currently conceived, are not a credible threat. Well, until you add a twist.
President Bush could threaten to line judicial openings with committed conservative and libertarian recess appointees, people who are too old, too young, too smart, too conservative, or too burned by previous failed nominations to ever be considered for ordinary judicial appointments. Unlike practitioners who cannot abandon their practice for a short stint on the bench, professors who can take a few semesters off and judges with no prospects of higher judicial office would be ideal. It would be like a judicial clerkship program for conservative and libertarian law professors that can continue as long as there is a Republican president.
If the Democrats don't think they like "stealth" candidates like Miguel Estrada, just wait until they experience the delights of judges Richard Epstein, Lillian Bevier, Bernard Siegan, Lino Gragia, and dozens more like them on the Courts of Appeals. Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court? For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees.
(Excerpt) Read more at nationalreview.com ...
The best proposal I have yet heard to address RAT judicial obstructionism.
Well, you're a bit of an optimist. I personally think they'd scream bloody murder about how this proves President Bush just wants to stack the courts with staunch conservative radicals. Then the sheeple may well buy into their hysterical arguments. Most voters simply tune out the judicial nominee process, and the Dems know it.
The problem is that the present fillibuster is not a real fillibuster. This is the fault of the Republican Senate leader.
It would be simple to solve this matter without any controversy over recess appointments. Simply make the fillibustering Senators be on the floor 24/7 until they finally cave in, just as the Democrats caved on the civil rights act in the 1960's when they fillibustered. Do you really think that Robert Byrd, who is older than Yoda (and not as good looking), is going to be able to keep that pace up?
Once again, the fault here lies totally among the leadership of "the stupid party".
It would be BRILLIANT only if WE end up with 60 senators who will eventually confirm permanent nominees of OUR president.
The Democrats' rule-or-ruin strategy is already tragic; it's a precedent for the Republicans to do likewise if the Democrats regain the WH, thereby producing only recess appointments until such time as one party or the other gets the WH and 60% of the Senate. And then a tidal wave of judicial appointments by that one president, filling vacancies accumulated over years and years.At least the recess naming of very good judges gives the Democrats some immediate downside . . .
Why? They will be just as much a precedent of the Court as any other decision, binding the lower courts, and having the force of stare decisis at the SCOTUS level.
Of course, I can't imagine such a bill being passed by the Senate.
You ruin a good point with a ridiculous statement at the end.
1) While it's a valid question, it's even more valid IMHO if directed at the media.
2) It's my understanding that the GOP is the party that would ultimately be worn out during a real filibuster. The Dems could schedule just a handful of folks to be in the Chamber, while a solid portion of the Pubbies would need to be there in the event a voting opportunity arose.
Plus, a real filibuster holds up all other work, including a tax cut. What do you think the American public cares more about - the economy or judicial nominees? So which party ultimately loses in the end?
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