|
Last
week, the Senate Judiciary Committee rejected the nomination
of Priscilla Owen, an extremist Texas jurist, and one
of President Bush's selections for a federal appeals
court judgeship, on a straight 10-9 party line vote,
leading Republicans and conservatives to complain about
the unfairness and partisanship of the Democrats. At
best, these criticisms are disingenuous; at worst they
are hypocritical, and bring to mind a quote from John
Kenneth Galbraith that "Nothing is so admirable
in politics as a short memory." I guess that the
Republicans don't recall their own conduct in the Judiciary
Committee when they controlled the Senate during the
Clinton Administration. Otherwise, perhaps New York
Herald Tribune journalist Walter Lippman had it right
when he suggested, "Brains, you know, are suspect
in the Republican Party." So, let me provide my
Republican friends with some enlightenment.
For
those who decry the "politics" of it all,
the truth is, those politics were very much intended
by the founding fathers. The approval of federal judicial
nominees for lifetime tenure is by its very nature a
political process. Republicans complain that the debate
over a judicial candidate's ideology should not be a
part of the Senate's consideration process. If the President
selects a well-qualified individual, they argue, it
is the role of the Senate to confirm that nominee. Nonsense.
The Constitution gives the Senate the role of
advice and consent. Alexander Hamilton laid it out clearly
in the Federalist Paper 77, when he said that the Senate's
job is to restrain the President through its advice
and consent responsibility. The Constitution does not
say that the President can consider ideology but the
Senate cannot. Yet this very double standard is exactly
what the Republicans are suggesting. The President may
employ a litmus test to select extremely conservative
candidates, but the Senate is supposed to look no further
than a nominee's legal qualifications. That simply makes
no sense. It would be an abdication of the Senate's
constitutional responsibilities.
The
Senate Judiciary Committee is doing its job, examining
the records and qualifications of the President's nominees
and overwhelmingly approving most of them. At the time
that the Owen nomination was considered last week, 81
nominees had been confirmed in the last 15 months, most
of them conservative Republicans. Remember, we have
a divided government, with one party controlling the
White House and the other controlling the Senate. It
is not the role of the Senate to rubber stamp the President's
nominees. When it comes to arguments of political ideology,
the last presidential election, and the deadlocked 50-50
Senate shows that there is no mandate to skew the Courts
to the right. Most people want neither an overly liberal
judiciary, nor an overly conservative one. They want
moderate, mainstream judges. The President does not
seem to understand this.
The
Republicans, with their selective memory lapse also
forget that when they ran the Senate, they operated
exactly the same way in which they now accuse the Democrats
of acting. During the Clinton Administration, the Republican
leadership left almost 60 judicial nominees languishing
in Committee, without even the courtesy of a hearing.
Others got their hearings, but never had a chance at
confirmation, because the leadership would not call
a vote on their nominations. In fact, President Clinton
tried twice to fill the very same seat President
Bush sought to fill with Patricia Owen, but the Republican
Senate refused to consider his nominees.
If
the President establishes ideological litmus tests,
as a requirement for his judicial nominees, and if he
selects nominees based upon that litmus test, why is
the Senate wrong to utilize similar litmus tests in
evaluating those nominees?
If
in fact, Republican conservatives opposed many Democratic
nominees because of their "judicial activism"
(translation: liberalism), how is that any different
from conservative judicial activists, like Patricia
Owen, who are so ideologically driven they are unable
to set aside their personal beliefs to follow judicial
precedent? Right wing judicial activism, such as the
willingness to ignore the plain language and intent
of laws to advance a personal political agenda is equally
offensive. That is why Patricia Owen was properly rejected
by the Senate. While President Bush claims he wants
to appoint Judges who uphold law and precedent, Owen's
views were not only far from the mainstream, her reading
of things into a statute that clearly were not intended
by the Texas Legislature in attempting to narrow a law
allowing minors to have abortions without parental consent,
even in only very limited circumstances, led the President's
White House Counsel, then her colleague on the Texas
Supreme Court, to call her actions "an unconscionable
act of judicial activism." She ignored clear statutory
language and let her personal preferences dictate her
rulings. She was properly rejected for it.
Finally,
we should not fall for Republican propaganda claiming
that the confirmation process has ground to a halt.
Actually, few nominees are the subject of such intense
debate and the Courts are far from paralyzed. Perhaps
if the Bush Administration were more focused on picking
distinguished jurists and less interested in advancing
a right-wing agenda with controversial or problematic
people, the process would be less contentious. Maybe
the President should take another look at the word "mainstream."
September
9, 2002
|
