Bush Needs to Make It Clear; What Is at Stake in Judicial Nomination Politics

Article excerpt


Just before closing shop until September, Senate Democrats began filibusters on four more circuit court nominees. The names and the faceless number (now 10) are ever less important with each new obstruction. What matters increasingly is the abuse of the Constitution in the unprecedented use of the filibuster to block the Senate from having an honest vote, up or down.

That is an issue that President Bush and senatorial candidates will take to the American people this election. But what is the debate over judges really about? For the answer we need look no further than to the two indispensable men - George Washington and, yes, Ronald Reagan.

Washington's first criterion for selecting judges was simple: He would not nominate anyone who had not recently supported the new Constitution. He wanted no judge who would seek to rewrite or undermine it. So, too, Ronald Reagan. The 40th president told a partisan Senate Judiciary Committee chairman, Republican Strom Thurmond of South Carolina, that judges should be neither liberal nor conservative, but "constitutionalists."

Washington thought the judiciary was the most important of the three branches of government because it would protect our liberties. For Mr. Reagan, liberty was less urgently at stake than the legitimacy of the courts and the Constitution itself.

Such past statesmanship only adds to the current disgust one has over the toxic culture of the Senate Judiciary Committee and New York Sen. Charles Schumer's effort to corrupt judicial selection with ideology. While Sen. Orrin Hatch, Utah Republican, bears responsibility for the partisanship, if only by his consistent surrenders to the bullying of Sen. Patrick Leahy, Vermont Democrat, Democrats have stepped well beyond that pale. Liberals under Sen. Tom Daschle, South Dakota Democrat, are attacking constitutional supremacy itself and the independent judiciary that John Adams so carefully crafted.

Clinton White House Counsel Abner Mikva illustrated the liberal plan in a 2002 article. In light of Bush v. Gore, Mr. Mikva said, the Senate should not confirm any Bush appellate nominees, since this president had lost the popular election. From the start, the fight over this president's judicial nominees was plainly not politics as usual, even if it was rooted in decades of judges pursuing political ends with scant regard for what the people's elected representatives, including the Constitution's Framers, wrote or intended.

The balancing between a disinterested judiciary and political divisions in interpreting constitutional law is an old debate, and one that Americans had reason to believe was settled long ago. Thomas Jefferson thought that interpretations of the Constitution should be left to a majority vote of the Congress, a result demagogues like Mr. Schumer would relish. This is, in fact, what is done in some banana republics. But American constitutionalism, including the independence of the judiciary and court review of laws that politicians in Congress enact, has been the key to making America as economically strong as we are, as compared to other democracies. …