In a piece called “They Started It,” E.J. Dionne attempts to apologize for the Democratic filibuster of the Estrada nomination. Dionne does not deny that Estrada deserves to be confirmed, but claims that the Democrats have no choice but to oppose him because the Repubicans “started it” when they failed to confirm certain Clinton judicial nominees. For the party that brought us “borking” and the Thomas confirmation hearings to claim (through its shill, Dionne) that the Republicans “started it” takes considerable nerve. And, although the Republicans blocked some liberal nominees during the last few years of the Clinton administration, the Republican Senate confirmed Clinton appointees at a much higher rate than the Democratic Senate confirmed Bush’s. To my knowledge, moreover, the Republicans have never launched a filibuster over a judicial nominee.
Dionne relies on a study fed to him by the Democratic staff of the Senate Judiciary Committee. Allegedly, the study shows that if all of Clinton’s appointees had been confirmed, then by the end of the Clinton administration the federal appeals courts would have been “balanced” — that is the number in which Republican-appointed judges were in the majority would have been equal to the number in which Democratic appointees held the majority. The study also claims that if Bush is able to fill every open seat, all but two appeals courts will have Republican majorities. But, in relying on this study, Dionne assumes that judicial power should be shared equally between the two parties regardless of the electoral landscape. Nothing in the Constitution or in historical practice supports this anti-democratic assumption. By the end of President Bush’s first term, Republicans will have occupied the presidency for 16 of the past 24 years and 24 of the past 32. Thus, one would expect most federal judges to have been appointed by Republicans. Our system contemplates that, at a minimum, a party that controls both the presidency and the Senate simultaneously will be able to place qualified judges from that party into vacancies on the bench. The Democratic filibuster over Estrada is thus fundamentally undemocratic. And since Dionne admits that he cannot justify the filibuster based on the merits of the Estrada nomination in itself, the filibuster should be condemned.
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