Thursday, April 11

His Constitutional Duty: Part II of a Two Part Column on Judicial Nominations

If the Pickering precedent is anything to go by, one of the biggest problems facing nominees will be Senate Majority Leader Tom Daschle stubborn insistence on adhering to the irresponsible practice denying the full Senate its right to vote on "controversial" candidates. By refusing to allow all one hundred duly elected Senators to vote on each of the President's nominees, Daschle is flouting both the express directions of the Constitution and the most basic democratic principles. To understand the ramifications of this practice, it is helpful to return to the case of Judge Pickering. Why was his nomination never put to a full vote of the Senate? Two possibilities present themselves. Either Daschle believed that the full Senate, although controlled by his party, confirm the judge or he believed that the full Senate, because held by his party, would reject the nominations. If the former is the case (and, given Democratic Senator Zell Miller's outspoken support for Judge Pickering, it almost certainly was) then Daschle is guilty of obstructing the democratic will of the majority of elected Senators. Even worse, from Daschle's point of view, the defection of Democratic senators to vote in support of a Bush nominee would have exposed his indiscriminate labeling of Bush's nominees as "extremist," "far right" and "outside the mainstream" for the lies that they are. If the latter is the case, then Daschle is lubriciously avoiding an open challenge to a popular president's agenda on the floor of the Senate because he can accomplish the same goal just as effectively and much more covertly in camera.

The Constitution empowers the President to appoint judges with the "advice and consent of the Senate," not the advice and consent of the Senate Majority Leader, not the advice and consent of a single senator with blackballing privileges (a dubious practice, engaged in by both parties, known as "blue-slipping"), and not the advice and consent of the nineteen senators on the Judiciary committee. In 1997, when circumstances were reversed, longtime Democratic Judiciary Committee member Senator Joe Biden, made this point with admirable force: "everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor," and "[w]e only in the Judiciary Committee have the right to give advice to the Senate, but it is the Senate that gives its advice and consent on judicial nominations." I have no doubt that Senator Orrin Hatch, the committee's ranking Republican member, would concur.

Of the eleven circuit court nominees announced by President Bush last May, only three have been confirmed (including the two aforementioned Clinton holdovers), one defeated (Pickering), and the remaining seven eminently qualified candidates have not even been afforded hearings. Outstanding among these candidates are Miguel Estrada, John Roberts, and Professor Michael McConnell. Estrada, a Honduran-born partner in Gibson, Dunn & Crutcher, was so well thought of by the Clinton administration that he was kept on as Assistant to the Solicitor General from 1992-97 and is also a former Asst. U.S. Attorney for the Southern District of New York. Roberts, the head of appellate litigation at the Washington firm of Hogan & Hartson, has served as second in command to the Solicitor General and as Associate Counsel to the President, and, in 2000, was described by Legal Times as "the best Supreme Court advocate in private law firm practice." McConnell, a former professor at the University of Chicago Law School and current professor at the University of Utah College of Law, is a pre-eminent constitutional law scholar whom the faculty of Harvard Law School recently voted to offer a tenured position.

Each of these nominees is likely to be confirmed by a majority of the full Senate so, of course, they have been targeted for special scrutiny and their nominations have been delayed to allow Democrats and leftist interest groups to mount smear campaigns against them. Considering that many of the current Democrats on the Judiciary Committee once voted to reject the judicial nominee with what may be the best resume in American legal history (long-time Yale Law School professor and leading constitutional scholar, former Solicitor General and Attorney General, and sitting D.C. Circuit Court of Appeals Judge), Republicans should be forgiven for expecting the worst. It is, therefore, incumbent upon Democrats to prove them wrong by immediately providing hearings for these nominees, followed by votes on their nominations by the full Senate. Anything less will amount to an abdication of their duties as elected officials sworn to uphold the Constitution.