Founders foresaw court fight

As a candidate, he cited the two most conservative Supreme Court justices, Antonin Scalia and Clarence Thomas, as models for the judicial nominations he would make.

As president, Mr. Bush has followed up by nominating a number of staunch conservatives to federal appeals courts. They include Mississippi Judge Charles Pickering, recently rejected by the Senate Judiciary Committee, and Texas Supreme Court Justice Priscilla Owen, who may face a similar fate.

And at a Republican fund-raiser in Dallas last week, Mr. Bush said he is undeterred by the rejection of Judge Pickering. "We've got to get good conservative judges appointed to the bench and approved by the United States Senate," he told his applauding audience.

But getting such judges nominated may prove easier than getting them confirmed, given the political climate and a vow by Democratic senators to play a role foreseen by the Founding Fathers.

The issue of presidential appointment and the Senate's role in restraining that power was discussed by Alexander Hamilton in No. 76 of The Federalist papers, the essays in which he, John Jay and James Madison explained the new nation's Constitution.

The need for Senate approval, Mr. Hamilton argued, "would be an excellent check upon a spirit of favoritism in the president and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment or from a view to popularity."

"In addition to this, it would be an efficacious source of stability in the administration," he said, declaring that "the possibility of rejection would be a strong motive to care in proposing."

In Federalist No. 77, Mr. Hamilton rejected the view that such power would give the Senate undue influence over the president. But "if by influencing the president be meant restraining him, this is precisely what must have been intended," he wrote.

Still, Mr. Hamilton said few nominations would be overruled by the senators. "They could not assure themselves that the person they might wish would be brought forward by a second or by any subsequent nomination," he explained.

Rejections for federal judgeships and other top administration posts have been relatively rare. Even so, the threat of action often has had a restraining effect on the president's decision making.

Richard Nixon, twice rejected when he picked Southern conservatives, turned next to a moderate Minnesotan, Harry Blackmun. And Bill Clinton, fearing the Senate wouldn't confirm such outspoken liberals as Bruce Babbitt or Mario Cuomo, picked the less confrontational Ruth Bader Ginsburg and Stephen Breyer.

Mr. Bush hasn't done that in choosing several appellate judges, though his political position is weaker in some ways than Mr. Clinton's. After all, he won the presidency by the narrowest of electoral margins in an election in which he got fewer popular votes and in which the voters left both the House and Senate virtually equally divided.

Mr. Bush has "no mandate from the American people" to fill the courts with "conservative ideologues," Sen. Charles Schumer, D-N.Y., said on CNN after the Pickering vote.

But so far, Mr. Bush shows no sign of heeding Mr. Hamilton's advice that "the possibility of rejection would be a strong motive to care in proposing." In fact, his top political strategist, Karl Rove, told the Family Research Council on the day Mr. Pickering was rejected that Mr. Bush would continue to make conservative judicial nominations.

While the Federalist Papers do certainly say this, the author of this article (obviously) misinterprets the point. George W. Bush has not appointed cronies or stooges to the Court, which is what the Federalists were trying to get control over. Furthermore, the Democrats are not making a case against the candidates' in the sense that the Federalists were trying to stop - They are campaigning against all Conservative justices - Clearly wrong.

Once again, Democrats show their ignorance of the Constitutional process for dealing with the Executive, and clearly choose to ignore that we're a Federal Republic..

Morons...

:) ttt

The most succedssful lies are those which contain some truth, to conceal the central lie. This article is an example.
I practice in the Supreme Court. I've spent decades reading and researching on the actions and intentions of the Framers. Here, however, the lie is on the surface for those who read with care.
As the two quotes from the state, the "advise and consent" power of the Senate over the judicial nominees of the President were given to "the Senate," not to any Committee of the Senate. And Pickering would have been approved by the Senate if the Democrat leaders had followe3d and obeyed these statements from the Federalist and ever permitted the whole Senate to vote.
I do not believe that the reporters and editors of this Dallas birdcage liner are so stupid as to have missed the point that "advise and consent" is for the whole Senate, not just a Committee of the Senate. Therefore, I conclude that they know what they are doing, and are DELIBERATELY LYING to their readers.
Pathetic. But no surprise.

Congressman Billybob

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Click here for next column: "Why Are We Here?" - the Prequel.

Whewwww! Glad to know I was at least on the right track. Thanks for the input. Here is my letter to the editor (they posted it to the Thursday "cyberletters" section of the paper's website.

Leubsdorf incorrectly applies Federalist No. 76

Re: "Founders foresaw court fight," by Carl Leubsdorf, Viewpoints, April 4.

I believe that Mr. Leubsdorf incorrectly applies Federalist No. 76 (and the Founder's prescience) in an attempt to describe the current ideological morass as justifiable.

While Hamilton envisioned the Senate's advice and consent role as a check against questionable appointments, that is not what our country is witnessing today. The choreographed opposition to each Bush choice carries with it the ideological warning to not attempt placing strict constructionists (conservatives) in the future. Nowhere (in No. 76 or No. 77) does Hamilton mention that the Senate's duty is to control the ideological makeup of the bench. On the contrary, he makes it clear that the duty to appoint is better suited to "one man of discernment" rather than an assembly of men "of equal, or perhaps even of superior discernment." Furthermore, he discusses at length why.

What Hamilton does warn against is influence peddling, shady characters, pandering and dishonorable appointees. One needs only to look in the rearview for these. President Bush's nominations have been people of strong character. Associating a nominee's commitment to constitutional principles with nepotism or influence peddling demonstrates a competitive willingness that should disturb citizens of our republic.

What we have in this case is a legislative body attempting to assert control over a co-equal branch of government. That Mr. Leubsdorf attempts to cloak a Democratic power play in Federalist paper support is inaccurate at best. If Tom Daschle, Patrick Leahy and company had cast off Ken Lay or Gary Winnick, rather than Charles Pickering, then the connection would make more sense. Let us not forget the incredibly ridiculous skewering of John Ashcroft by the Senate committee.

There is no connection between Hamilton's writing on the subject and Bush's "care" in selection.

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