The Washington Post takes President Bush to task for his two latest appellate court nominees, Brett Kavanaugh and Janice Rogers Brown. The Post readily acknowledges that both are “people of substance” and “nominees whose records and qualifications might well under other circumstances command support.” So what is the problem? Well, Kavanaugh worked for Ken Starr when he was investigating Bill Clinton and, more recently, worked in President Bush’s office of White House Counsel on “sensitive matters” such as judicial appointments. And Rogers once wrote an opinion that included a line ridiculing San Francisco for its lack of regard for property rights. Thus, in the Post’s view, nominating these two “pours salt on Democratic wounds.” Indeed, the Post believes that it “takes nerve for Mr. Bush to ask Senate Democrats to confirm such people.”
This editorial is so wide of the mark, it’s difficult to know where to begin my critique. First, Bush is not asking Senate Democrats to confirm “such people;” he is merely asking (ultimately) that they not filibuster them. It doesn’t take much nerve to ask for this because filibusters against appellate court nominees are essentially unprecedented, or were until the Democrats recently started the practice. I can’t imagine what precedent the Democrats or the Post would cite for filibustering a nominee because of his prior job assignments or because of her throwaway line in an opinion.
Second, in what sense is the president “pouring salt on Democratic wounds?” What, for that matter, are the wounds?” From the outset of his administration, Bush has been nominating a mixture of moderate and conservative candidates for appellate court positions. This is what moderately conservative presidents do, and it has never before been considered particularly problematic, much less been deemed grounds for filibustering the conservative appointees (or the liberal ones in cases where the president was a liberal). In effect, then, the Senate Democrats have attempted to change the rules and now pretend to be “wounded” when the president doesn’t follow them. And the Post, while admitting that the Democrats have acted improperly, would legitimize this travesty by attacking Bush for failure “to lead.” In fact, however, if Bush were to send the Democrats a steady diet of nominess that don’t “wound” them he would not be leading at all. He would be capitulating, and in the process giving up a prerogative that every president in our history has exercised — the right to nominate judges of his own choosing.
So, are the Post editorial writers fools or knaves when they urge Bush to accept the new rules that the minority party wants to impose? Probably neither, although knaves would be the better fit. The Post’s position is driven by the fact that, while it understands the Democrats have acted outrageously in opposing conservative nominees, it doesn’t want conservatives on the bench either. This makes it easy for the Post to advocate that the president be the one to blink. That approach would end (at least for the moment) an unseemly battle, and at the same time yield a satisfactory (even happy) result. It would repesent a win-win outcome for the Post and, coincidentally, for the Senate Democrats. Unfortunately, it would be a pure loss for the White House and for the institution of the presidency. That is why President Bush has shown great leadership in continuing to send conservative nominees to the Senate. Some will probably be confirmed and the Democrats may have to pay a political price for blocking the others.
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