More Judicial Nomination Politics

By this standard, can anyone sit on the bench? Doesn’t everyone have views that would shape the way they would act as a judge? And isn’t the real issue that Democrats would prefer that views that resonate with them would be represented, rather than those that Republicans prefer?

Many of President Bush's nominees have records of taking vigorous conservative views. When challenged at confirmation hearings by Democrats, they and their defenders invariably say that they will "follow the law" and Supreme Court precedent and that their individual views are irrelevant.

Democrats have increasingly complained that such a response is a dodge and that the nominees would never have been picked in the first place by the Bush White House without holding such views.

Mr. Pryor, following the pattern, argued vigorously that his personal beliefs and choices were unrelated to how he would behave as a federal judge.

[…]

Senator Charles E. Schumer, Democrat of New York, said Mr. Pryor's assurances were largely meaningless: "It's just not enough to say `I will follow the law.' Every nominee says that, and then when they get to the bench they have many different ways of following the law."

Really, isn’t the bottom line that Schumer objects to the way that he thinks that Pryor (and Estrada and Owen, etc.) would interpret the law? Isn’t he basically saying that Pryor is wrong and he is right, and that his view should dominate? It does come down to raw politics. And what is going to be the response the next time that a Democrat is in the White House and the Democrats control the Senate and the Republicans pull this nonsense?

However, we do have a system in this country for placing judges on the bench: the citizens elect the President, who appoints, and the citizens elect the Senate, which confirms. As I have noted, the Democrats have every right to use every rule at their disposal to achieve their goals, even though they are in the minority. However, I am increasingly of the opinion that the Republicans will have to do the same vis-à-vis the rules, since the Democrats are clearly willing to abuse the filibuster rule to block the President’s nominees.

And this is telling:

Some Democrats said that Mr. Pryor's views are so unpalatable that they might not seek to block his confirmation with a filibuster, as they have with other nominees, but allow it to have a straight up or down vote in the Senate.

So, if they think that they will win the vote, a vote is fine. But, if they would lose the vote, then let’s trot out the filibuster.

Really, the issue seems to me to be this: if these nominees are indeed as repugnant as Schumer considers them to be, then why not attempt to convince 51 Senators that he is right? And indeed, someone (they are unnamed in the article) seems to arguing that that might possible in Pryor’s case. To which I say: that’s fair. The same should be done with Estrada and Owen: if they are truly unfit to serve, then convince 51 Senators that that is the case and win on the floor.

And the following passage demonstrates the “you can’t win” element of this process that dates back to Bork:

The senators appeared to enjoy reading Pryor quotations from his writings and speeches, and asking him if they were accurate. Pryor confirmed with a soft drawl that the views were his, but he said those views did not prevent him from enforcing the law.

Because if you have written or spoken, you are doomed, but if you don’t have a paper trail you are skewered for not being forthcoming, a la Miguel Estrada.

(Side note: I love the "drawl" ref. If he was from Boston would the paper comment on the way he pronounced his vowels, or how he added an "r" to words like Cuba and Ghana? I think not.)

Sources for all but the last quote: NYT

Source for the last quote: WaPo

Posted by Steven Taylor at June 12, 2024 12:56 PM | TrackBack