We’re big fans of Andrew McCarthy. However, I’m unable to find any merit in his suggestion in today’s NRO that the Bush administration consider conferring with a “bipartisan” group of Senators about judicial nominations. McCarthy notes that Senator Charles Schumer has proposed the creation of a “small, bipartisan group” of senators that “should meet with the president sometime in the next few weeks and eventually even make joint recommendations to the president of nominees that are highly qualified and could get broad, bipartisan support in the Senate.” McCarthy states that this suggestion should not be dismissed out-of-hand.
I believe that it should be. There are two possible outcomes to Schumer’s approach, neither good: (1) President Bush nominates fewer conservatives than he otherwise would and (2) President Bush ultimately sticks to his guns, but from a weaker position. In the second scenario, the adminstration’s position would be weaker because there would be identifiable moderate alteratives to Bush’s conservative nominees who will have been blessed by a “bipartisan” committee. Bipartisan recommendations always take on a special status that bears no relation to their merit. Think of the 9/11 commission’s recommendations.
Had the president been sending nothing but conservative nominees to the Senate, a conciliatory position might have more to recommend it. However, the truth is that Bush at times has sent the Senate slates of nominees containing a mixture of moderates and conservatives. Early on, he proposed such a slate and, in a gesture of good will, even included Roger Gregory, an African-American Clinton recess appointee to the Fourth Circuit. Later he nominated two more African-Americans for the Fourth Circuit, conservative Claude Allen and non-conservative Allyson Duncan. The Democrats’ response has been to confirm the moderates and block many of the conservatives. For example, Gregory and Duncan now sit on the Fourth Circuit; Allen does not. In short, Schumer and his colleagues have never acted in good faith, and the administration should not deal with them at this point.
There have always been only two sensible ways to respond to the Democratic obstruction of judicial nominees: (1) wage all-out war (using the so-called nuclear option to prevent a filibuster) and (2) fight, but not all-out, and let the Democrats take the political fall-out for obstructing judges. Now, these two approaches are about to merge because the Democrats have threatened to shut down the Senate if the Republicans fight all-out against their obstruction. This means that the harder the Republicans fight, the more political damage the Democrats are likely to inflict on themselves. Why should the Republicans save the Democrats from themselves.
HINDROCKET agrees: It would be hard to think of a worse idea than setting up a small, bipartisan group of Senators who would suggest the names of “highly qualified” judges who would receive “broad, bipartisan support in the Senate.” As a matter of tradition, Senators already have too much influence, in my opinion, on nominations for District Court judges. But that isn’t where the problems are, and it isn’t what they’re talking about now. The Constitution gives the President the right to name judges to the federal bench, not the Senate; still less an unofficial, “bipartisan” committee of Senators. I can understand why Senators would want to chip away at this Presidential power, but why any President would agree to it is beyond me.
The Constitution gives the Senate the right to “advi[s]e and consent” to the President’s nominations; it doesn’t say the Senate can “advise, consent or stall,” or “advise, consent or refuse to take a vote until the President nominates a candidate preferred by the minority.” President Bush and the Senate Republicans are in a commanding position, both Constitutionally and politically, which it would be foolish to back away from.
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