Liberal columnist E.J. Dionne presents a characteristically misleading piece about the judge confrimation process. As regular readers of Power Line know, we are all lawyers and we have followed with interest and disgust the all too successful efforts of Senate Democrats to prevent President Bush’s nominees to the federal bench from being voted up or down by the full Senate. By killing the nominations in committee, the Democrats not only prevent the President’s nominees from being confirmed, they protect most Democratic Senators from having to go on record and vote them down. Of course, this leaves the federal judiciary badly understaffed, but this is of no concern to the Democrats. Nor does it matter to the Democrats that most of the blocked nominees are highly qualified individuals, according to the American Bar Association and to distinguished attorneys, both liberal and conservative. We at Power Line have documented a number of such instances.
President Bush has proposed a plan whereby federal judges would give a year’s notice before retiring so that the process to replace them could start early. A series of deadlines for the White House and Senate would then follow, leading to a floor vote within 180 days of a given nomination. Dionne asserts that these changes “move in exactly the wrong direction.” His rationale is that the Bush plan does not call for the Senate to provide any advice on who should be nominated. But no president has ever been required by law to consult with the Senate before nominating judges. Dionne points to the “advise and consent” language of the Constitution. Yet this language also applies to appointing cabinet members. Does anyone expect the president to consult with members of the opposition party in the Senate before nominating a Secretary of State? Dionne has deliberately missed the point. The Bush plan is a method of obtaining a timely vote on judicial nominees, necessitated by Democratic stalling tactics. The president can maximize his chances of prevailing on the vote by consulting with the opposition or he can take the risk of not doing so. That choice should be the president’s.
Dionne advocates a plan whereby the president and the Senate would agree on balanced slates of judges representing the liberal, conservative, and moderate points of view. He pretends to think that this sort of horse-trading is appropriate when there is divided government. But there has been divided government for most of the past 34 years. The only thing that’s new in 2002 is that the Democrats on the Judiciary Committee have essentially gone on strike. That is insufficient reason for the president to give up a prerogative he has exercised since the founding of the Republic.
In his role as shill for the Senate Democrats, Dionne makes a number points that are highly misleading. First, he equates the Republican Senate’s stalling on some of Clinton’s final appointees with what the Democrats are doing now. For years, outgoing presidents from both parties have had difficulty getting nominees confirmed. But no newly elected president, regardless of his margin of victory, has ever had that problem. I don’t have the figures handy, but I’ve seen them. The confirmation rate for Clinton’s nominees is comparble to those of President Reagan and the first President Bush, and vastly exceeds the rate of the current Presdent Bush. Second, Dionne, posing once again as the voice of moderation and reason, suggests that ideologically balanced courts are desirable in their own right. Does anyone recall Dionne (or any liberal) making this point during the eight years when the Democrats controlled the nomination process? I certainly don’t. In any event, after eight years of Clinton-appointed judges the best way to restore balance to the judiciary is to allow well-qualified Bush nominees to be confirmed, even if they are mainstream conservatives. But that will happen only if the Republicans take back control of the Senate in Tuesday’s election.
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