The Judicial Nomination Process

I know this is a little old, but since the latest Advocate (Santa Clara University Law Newspaper) has come out, my opinion can be posted. NOTE: this was written just after the GOP talkathon a couple of weeks ago.



Senate Democrats value the rule of politics over the rule of law



The Democrats in the U.S. Senate should be ashamed of themselves. But they aren't. These obstructionists are turning the U.S. Constitution on its head by filibustering many of President Bush's most qualified judicial nominees. Why are they doing it? They believe the rule of politics trumps the rule of law.



Essentially, the Democrats in the Senate are blocking nominations of people who are qualified to serve on the federal appellate bench, but who are more conservative than Ted Kennedy (American Conservative Union lifetime rating of 3 out of 100). The Republicans have attempted to end the filibusters several times to no avail. We just saw 40 straight hours of talk that ended where it began. Republicans are currently considering parliamentary maneuvers just to get an up or down vote on these nominees. The filibuster has never been used to block judicial nominations, particularly when the nominees have the support of the majority of Senators. By requiring 60 votes to end debate and allow an up or down vote, the Democrats are rewriting the Constitution, which provides that a majority Senate vote constitutes consent. By requiring supermajority of 60 votes to approve a nomination, the Democrats are trampling on the Constitutional requirement of a simple majority.



This mess all starts because the Democrats are out of power. The Republicans control the Executive and Legislative branches of the Federal Government. Normally, when Democrats cannot achieve their policy goals through legislative means, they turn to the courts to legislate for them. They are so hysterical now because they see Bush's nominees as too conservative and thus a threat to their "3rd" legislative body - the courts.



Democrats are worried that Bush will fill the courts with judges who strictly construct the laws, and more importantly, the constitution. In other words, attempts to advance a liberal policy agenda through the courts will be prevented and the Democrats' political aims will be halted. The Democrats view the rule of law is used as a means to an end, rather than an end itself. Don't believe me? See this. If liberal politicians do not like the outcomes of cases, the answer is to change the law, not the judges. Democrats are saying that this was done to Clinton nominees so they are justified in their actions. But many of these nominations were made right before Clinton left office when there was no real time to do background checks or hold committee hearings. Yes, some Republicans used "blue slips" to deny some nominees a vote, but the GOP never resorted to filibustering nominees who would garner majority support. Furthermore, President Bush, in an attempt mend some fences and show goodwill towards Democrats, renominated some stalled Clinton nominees, who got their vote and are now federal judges. Of course all that gesture got him was a slap in the face by petty Democrats.



Obviously, the Democrats are objecting to these Bush nominees because of the perceived political ideology of the nominees. But this is the first time in the history of this country such a political litmus test has been used as a reason to halt the nomination process. This strategy all started back in 2001, when the Democrats took control of the Senate (thanks to Jim Jeffords, not the voters). Senator Chuck Schumer (D-NY) used Judiciary Subcommittee hearings as a tool to find an historical reason to use ideology to block nominations (See also, Judging by Ideology by Charles Schumer, New York Times, June 26, 2001; Section A; Page 19; Column 2). Schumer also held hearings on whether the nominee has the burden of proving their worth, rather than the burden being on a Senator to justify voting against the nominee. It is not difficult to see what conclusion Schumer had in mind even before he held those hearings. The point was to justify voting against a qualified nominee whom the Democrats could declare "out of the mainstream" on issues like abortion, federalism, or racial preferences (Oddly enough, whether they are the majority or minority party, the Senate Democrats always get to decide who and what is mainstream).



Furthermore, this setup justifies asking nominees how they would rule on these types of cases, and vote against them if they refuse to answer such questions. Answering that kind of question naturally puts these potential judges at odds with ethical guidelines and at risk of being forced to recuse themselves in certain cases. Justice Scalia's recent recusal illustrates this point. Additionally, the ABA has said: "Problems arise, however, when legitimate inquiries into a nominee's judicial philosophy degenerate into thinly veiled efforts to preordain how the nominee will rule on specific issues in the future. Such 'litmus test' questions cut to the quick of would-be judges' decisional independence and are properly resisted by the nominees." An Independent Judiciary Report of the ABA Commission on Separation of Powers and Judicial Independence. b. Judicial Appointments. So these nominees have to decide whether to voice their views and risk conflicts and a filibuster for being "out of the mainstream" or decline to vote (the ABA's view) and risk a filibuster for being non-responsive to these political questions. It's a lose-lose situation, unless you are Democratic Senator or liberal special interest group.



Speaking of interest groups...Left wing activists from groups like People for the American Way, Americans United for Separation of Church and State, NOW, National Abortion Rights Action League (NARAL), NAACP, etc. are providing the real impetus for the filibustering of Bush's nominees. These highly effective and politically powerful groups have forced Senate Democrats to block Bush's nominees, particularly targeting nominees that are minority. Miguel Estrada, a Cuban American immigrant with an amazing story of making it in America, was targeted by left wing Hispanic groups, like La Raza and MALDEF, for not being Hispanic enough. Marisa Demeo, regional counsel for MALDEF said, "Being Hispanic for us means much more than having a surname...it means having some relationship with the reality of what it is to live in this country as a Hispanic American." This sentiment was echoed by New Jersey Rep. Bob Menendez, a member of the Congressional Hispanic Caucus. He said, "Being Hispanic for us means much more than having a surname...it means having some relationship with the reality of what it is to live in this country as a Hispanic American." Democratic strategy memos prove the same thing: "They [a number of left-wing groups strategizing on nominations] also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible." (Wall St. Journal, Friday November 14, 2003, Section A; Page 12, Column 1. emphasis added). Estrada was targeted BECAUSE HE IS LATINO! That's racist, whichever way you want to look at it. What else is clear by these statements is being a "proper minority" means producing left-wing political results. The outcome? After two years of waiting for a vote, Estrada asked President Bush to withdraw his nomination. The Democrats just can't let President Bush get credit for appointing a Latino to the 2nd highest, and eventually the highest court in the land.



Janice Rogers Brown, the first African-American woman on the California Supreme Court was similarly nominated by the President for the D.C. Circuit and is being filibustered. The left's main hang-up with Brown is that, like Estrada, she is a minority. The Democrats can't stand non-liberal minorities. She wrote the court opinion upholding Proposition 209, which banned race preferences by the California state government. She's black so she should know better, right? I guess not, so she’s accused of being "hostile to civil rights" because, as Senator Schumer said, she’s voted against "minorities" and "low-income" people. This smear means her rulings do not lead to the correct political results. She's been called another Clarence Thomas, as if that is a pejorative. Rep Diane Watson (D-CA) snickered, "this Bush nominee has such an atrocious civil rights record that Clarence Thomas would look like Thurgood Marshall in comparison." The Black Commentator called Brown a "Jim Crow era judge, in natural blackface." These statements imply that she is a race-traitor. This racist and patronizing attitude amounts to little more than calling her an "Uncle Tom." She's not sufficiently "black," so they block her.



Priscilla Owen is being obstructed because the left does not like the way she ruled a parental consent to abortion law was constitutional. Doesn't Owen know that as a woman she is supposed to rule a certain way regardless of what the law says? I guess not. Blocked! The Democrats are filibustering William Pryor, the Attorney General of Alabama because as a Catholic, he has "strongly held views" on certain issues. The implication of this is that because of his "strongly held views" he cannot put them aside and uphold laws he disagrees with, particularly abortion precedents. Scrutiny of his record in Alabama doesn't show this, but whatever, block him. Charles Pickering is being filibustered for 5th Circuit position. The Democrats charge him with being racially "insensitive." That means he must not have ruled (as a District Court Judge) a certain political way. Overlooked is the fact that this man has the backing of all major African American politicians in Mississippi, including the endorsement of Charles Evers, brother of murdered civil-rights activist Medgar Evers. Pickering even testified against the KKK in a 1967 trial, which cost him his job as a local prosecutor. The Democrat's main dispute with Pickering is that he questioned whether a conviction of a cross-burner was too harsh in light of the deal prosecutors cut with the ringleader of the cross-burning incident. He thought the ring leader got off too easily, is the point here, but whatever. Block him.



While it is appropriate to inquire about the general judicial philosophy of each nominee, these Democrats are confusing judicial philosophy for political ideology. Conservatives say they like judges who say what the law is and not what it ought to be. President Bush is putting forth nominees that he believes will uphold this judicial philosophy. The Democrats don't like these judges because they don't produce the right outcomes politically. These filibusters are aimed at judges who haven't produced the right outcomes. Janice Rogers Brown has been pilloried for upholding California's Proposition 209. Of course she couldn't have done it by herself; she simply led a majority of the California Supreme Court in upholding the law. The Democrats in the Senate disagree with the outcome of that case and others as do the left wing activists around the country. But it is constitutional. Political outcomes of cases should not be used to test a nominee's qualifications. Federal Judges should be independent of politics. That's why they get lifetime tenure. Using political ideology to test whether a nominee is qualified for the bench threatens this independence and the politicization of the judiciary threatens the rule of law. This is a bad thing.



Finally, I should say that the Democrats' unprecedented action is fueled by their hatred of President Bush. They still have not moved on from the 2000 election. Democrats do not think Bush is legitimate and therefore all his nominations should be blocked. Senator Feinstein confirmed this strategy when she said, "I also deeply believe that the closeness of [the 2000] election and the fact that right-wing judges never really were part of this president's candidacy indicated to me that there is no mandate out there to skew the courts - and particularly the higher courts, the appellate courts - to the right." This is sad. What is even worse is Ted Kennedy using ad hominine attacks on these nominees, calling them "Neanderthals" and "turkeys." Ted Kennedy is the last person who should resort to name calling, but it just proves my point. Senate Democrats have no shame.