Writes GWU law Professor Jonathan Turley: The truth about Bush’s not-so-dirty dozen judges

The decision to nuke or not to nuke has obscured the real issue: Are the Republican nominees qualified or are they flat-Earth idiots? As a pro-choice social liberal, I didn’t find much reason to like these nominees. However, I also found little basis for a filibuster in most cases. Indeed, for senators not eager to trigger mutually assured destruction, there is room for compromise.

Consider the three Michigan judges nominated for the 6th Circuit Court of Appeals. There is no compelling reason Richard A. Griffin, Susan Bieke Neilson or Henry W. Saad should be barred. Judged well-qualified by the American Bar Association, their sin appears to be that Republicans failed to consult on their nominations with Michigan’s two Democratic senators. Then there is David W. McKeague, a well-regarded federal trial judge in Michigan, also nominated to the 6th Circuit. The only claim Democrats make against him is that he lacks the proper “temperament”–a term used when a politician can’t find a real reason to oppose a nominee.

[…]

For nine of the Republican nominees, Democratic opposition looks as principled as a drive-by shooting. In fairness, the remaining three nominees raise legitimate concerns.

The three?

Democrats are on good ground in filibustering William J. Haynes II, who signed a memo that appeared to justify torture of POWs and suggest that the president could override federal law — an extreme view that preceded abuses at Abu Ghraib and Guantanamo.

Then there’s 9th Circuit nominee William G. Myers III, a former mining lobbyist who, as an Interior Department official, advocated extreme-right positions on Native American and environmental issues, often in contravention of accepted law. Given the centrality of such issues to the 9th Circuit, there is reason to bar his confirmation.

Finally, there is the closer case of Priscilla R. Owen. She has a “well-qualified” ABA rating, but she is also indelibly marked by a prior public rebuke. Attorney General Alberto R. Gonzales, her colleague on the Texas Supreme Court, said she engaged in “an unconscionable act of judicial activism” in restricting a minor’s access to an abortion. That and other charges of activism leave Owen damaged goods for confirmation.

Turley’s position synchs well with my own: I don’t expect that a President will get every single nominees that he puts forth–I simply expect that he (Rep or Dem, Con or Lib) will get most of them. Indeed, unless a given President is nominating truly unqualified persons to these posts, he should largely get what he wants so long as a majority of the Senate concurs (i.e., in accordance with Constitutional advice and consent).

It is not unreasonable that the minority would on occasion summon special powers to block a nominee. The majority might not like it and the President might not like it, but it is fair. However, for the minority to block such a high number of Appeals Court nominees (and don’t give me the “they’ve approved the District Court nominees” line) is not justifiable–especially when the minority isn’t willing to debate the candidates on the merits, but simply want to use a procedural ploy to block the candidates en masse.

At the end of the day, I think that Turley has the right solution:

Hostilities should cease. Democrats disinclined toward apocalypse should confirm Brown, Griffith, Griffin, Kavanaugh, McKeague, Neilson, Pryor, Saad and Boyle. That should shame the president into withdrawing Haynes, Myers and Owen.

No one will be 100 percent happy — and in today’s lethal political environment, that would be a very good sign.

Even more accurately: if not one is 100% happy it is because that’t the normal outcome in democracy.