Judicial Selection Gone Awry; Filibustering Judicial Nominees Is Unconstitutional

Article excerpt

Byline: Nat Hentoff, THE WASHINGTON TIMES

The relentless filibustering by Democrats in the Senate of presidential judicial nominees Miguel Estrada and Priscilla Owen is not of priority interest to many Americans. Most of them may not even know that this crude obstructionism is not empowered by the Constitution. This is the very definition of reckless partisanship.

Many Americans hardly know most, if any, of the names of the federal district or circuit judges in their areas. Yet, the great majority of cases before these judges, often affecting the lives of many of us, are decided in these lower courts. The Supreme Court chooses to hear only a few more than 70 cases a year.

In fact, how many citizens know anything about how extensive the Democrats' obstruction of the confirmation process is? For example: This is the first time in American history that circuit court judges (a level just below the Supreme Court) have been filibustered. The Constitution authorizes a majority of Congress to "advise and consent" to the president's choices, but these filibusters are requiring 60 votes more than a 51-49 majority to allow the entire Senate to vote up or down on the nominees.

Addressing the issue Friday in the White House Rose Garden, the president followed Thomas Jefferson's advice: "I know," Jefferson said in an 1820 letter to William C. Jarvis, "[there is] no safe depositary of the ultimate powers of society, but the people themselves; and if we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power."

Just as a principal used to be the head teacher in a school, so a president when he recognizes the national need to educate the people on an issue that affects the entire country becomes the head teacher of the United States. I am old enough to remember how effective Franklin D. Roosevelt was in that role. My family, like many others, never missed one of his conversations with us on the radio.

Similarly, President Bush has redeemed the constitutional confirmation process for federal judges by going on prime-time television and challenging the Senate's Democratic leadership to show where in the Constitution they find the right to filibuster these nominations.

There have been times when the Senate Judiciary Committee itself when either Republicans or Democrats are in the majority has refused to even hold hearings, or to send nominees to the floor, for votes by the entire Senate. …