The utter cluelessness of the Republican majority in the U.S.
Senate continues to show itself in the Senate’s continuing refusal
to move forward with confirmation of federal judges, especially to
the circuit courts of appeal.
And what’s truly baffling is that the Republicans’ failures on
judges not only hurt the American polity, but actually hurt their
own politics as well — as we shall see. With senators,
unfortunately, principle doesn’t always suffice; but when principle
and raw politics happen to coincide, it’s almost bizarre to see
practiced solons fail to take advantage.
But that’s what has happened.
It was actually liberal Democratic Sen. Patrick Leahy of
Vermont, one of the fiercest participants on the wrong side of the
battle over the judiciary, who in a March 14 statement best made
the point: “[T]he total number of judicial appointments since
January 2001 [is] 232, including the confirmations of two Supreme
Court Justices and 43 circuit court judges. Of course, 100 judges
were confirmed in the 17 months there was a Democratic majority in
the Senate. In the other 45 months, 132 judges have been confirmed.
Ironically, under Democratic leadership, the Senate was almost
twice as productive as under Republican leadership.”
That’s a hell of a note.
SEN. LEAHY WAS, OF COURSE, being a bit disingenuous, because most
of the nominees approved in the first 17 months were for the less
controversial positions on the lower federal courts, not for
appellate judges. But the fact remains that the Republican
leadership has moved in many ways more slowly in the face of the
threat of Democratic filibusters than the Democrats themselves
moved when they had the majority power to reject nominees outright
in committee. Worse still, the Republican majority has moved
more slowly after supposedly “winning” the battle
over the constitutional (“nuclear”) option against filibusters than
it moved before the so-called Gang of 14 agreed that filibusters
could be used only “under extraordinary circumstances.”
The Gang’s agreement expressly provided for cloture for (and, in
effect, confirmation of) purportedly controversial appellate
nominees Bill Pryor, Janice Rogers Brown, and Priscilla Owen. It
also freed up D.C. Circuit Court of Appeals nominee Thomas
Griffith, a favorite of powerful GOP Sen. Orrin Hatch of Utah, and
two appellate judges from Michigan, Richard Griffin and David
McKeague — neither of whom was controversial in his own right.
Since then, however, the only appeals court judge
confirmed was fellow Michigander Susan Nielson, who was in ill
health and who died in January, just three months after being
seated on the bench.
But a fourth Michigander, state court of appeals Judge Henry
Saad, has finally withdrawn in disgust after three years of ill
treatment. Meanwhile, Fourth Circuit nominees William Haynes and
Terry Boyle remain in limbo after, respectively, more than two
years of waiting and a whopping 15 years. (Judge Boyle was first
nominated for the Fourth Circuit by the first President
Bush, and nominated again by the second Bush way back on May 9,
2001.)
Brett Kavanaugh (of whom, more shortly) has been waiting for
nearly two years for the D.C. Circuit. William Myers was first
nominated for the Ninth Circuit in May of 2003. In all, 11 nominees
await confirmation, and nine other seats are vacant. (And by my
count there are 34 lower-court vacancies as well.)
In short, the famous (or infamous) Gang of 14 agreement has left
far more appellate slots unfilled, ten months later, than it has
helped to fill. And this sorry record comes on top of the failures
earlier in the Bush presidency to ward off the character
assassinations that badgered nominees Miguel Estrada, Carolyn Kuhl,
and Charles Pickering into withdrawals for no good reason.
One would think, with a 55-45 majority and an agreement from
seven of the minority Democrats that they would not filibuster
except in “extraordinary circumstances” (and with more than 50
Republican committed to clarifying the rules so as to kill judicial
filibusters once and for all if the Democrats break this
agreement), that Senate Republicans would be more eager to fill the
judiciary with people willing and able to push back against leftist
jurists — jurists whose decisions are inimical to the principles
and politics of those very same Senate Republicans.
Some may argue that the Senate GOP isn’t getting credit here for
confirming Supreme Court Justices John Roberts and Samuel Alito.
Point granted. But it’s irrelevant. Both then-judges had already
effectively won the PR war within about three days of being
nominated. All the Senate GOP had to do was keep its nerve and
fight a pretty simple rearguard action while the nominees
themselves did the heavy lifting.
MEANWHILE, IT IS AT THE CIRCUIT appellate level that the greatest
number of important cases get decided, without the Supreme Court
even deciding to review them. Of those circuit courts, the D.C.
bench is of course seen as the most important of all — and it is
there that perhaps the most promising nominee, Brett Kavanaugh, is
slated to sit.
At age 41, Kavanaugh already has a resume that many lawyers 15
years his senior would die for. A double-graduate of Yale (B.A. and
J.D.), the brilliant and friendly Kavanaugh clerked for not one but
two circuit appellate judges and for Supreme Court Justice Anthony
Kennedy (when Kennedy still seemed mostly conservative), served as
an assistant U.S. solicitor general and as White House associate
counsel, in addition to stints at the prestigious Kirkland and
Ellis firm and for Independent Counsel Kenneth Starr.
It is that last-mentioned role, of course, that gives Senate
Democrats heartburn. But it shouldn’t. No less than the iconic
Watergate scoopmeister Bob Woodward has written that Kavanaugh was
a moderating force in the office, showing wisdom and balance
(sometimes in the form of basic tactfulness) that some of his
superiors lacked. For instance, he opposed the decisions to include
in the main report issued to Congress all the graphic details of
the Clinton sexcapades and to release said details in a public
document dump. (The explicit nature of the material was blamed on
Republican prurience and actually helped turn the American public
against impeachment.) And as one of the main authors of the report
on Vince Foster’s death, Kavanaugh helped clear away some of the
most outlandish rumors about that sad event. In short, he was more
than fair to the Clintons, and deserves no Democratic calumny for
his role.
Moreover, leading conservative legal lights uniformly give
Kavanaugh high ratings on matters of principle — and the American
Bar Association judicial panel gave him its highest rating of “well
qualified.”
In short, Kavanaugh is, like Justices Alito and especially
Roberts, a political victory just waiting to happen for Republican
senators who would only be helped if the Democrats insist on
raising a stink about such an attractive and talented nominee. And
if Democrats are stupid enough to filibuster him, a GOP invocation
of the constitutional option to kill the judicial filibuster for
good, on behalf of a nominee of such star quality, could only
redound to the GOP’s political benefit.
INDEED, IT IS IN PURELY POLITICAL terms that the Senate
Republicans’ reluctance to push judicial nominees looks both
moronic and bizarre. All the recent political history suggests that
when the topic is judges, Republicans win. (Or at least
conservatives win: Clearly and sadly, even many self-proclaimed
“conservatives” in the Senate GOP caucus are anything but
conservative in the principled, philosophical sense at all.)
Current GOP senators Saxby Chambliss, Mel Martinez, David Vitter,
John Thune, and Jim Talent all won hard-fought races at least in
significant part by stressing the issue of judges at campaign
appearance after campaign appearance. South Carolinians Jim DeMint
and Lindsey Graham, North Carolinian Richard Burr, and Georgian
Johnny Isakson also stressed judges while winning more handily.
More than that, it is on the issues surrounding judgeships that
conservative positions consistently attract the largest majorities
in public polling. While no good conservative judge is
“result-oriented,” the simple nature of the beast is that a
conservative judicial approach will tend to reach popular results
— because it is the arrogant left whose judges try to dictate
newfangled social outcomes, without regard to the elective branches
of government, that are opposed by a majority of the American
public and which are found nowhere in the text and tradition of the
Constitution.
For instance, when the issue is the misuse of “eminent domain”
to seize private lands for the use of other private entities,
conservatives win.
When the issue is governmental hostility towards (rather than
mere neutrality about) expressions of faith in the public square,
conservatives win.
When the issue is partial birth abortion, conservatives win.
When it’s forfeiting sovereignty by citing the supposed authority
of foreign law, conservatives win. And conservatives win
big on the issue of judicially imposed homosexual unions,
on the Pledge of Allegiance, and especially on issues of law and
order.
A politician doesn’t have to delve into abstruse constitutional
theory, much less into emanations from penumbras, to make hay of
these topics. All of these topic are affected by judicial
decisions, and all of them create gut-level responses in
conservatives’ favor among broad swaths of the American people.
Despite appearances to the contrary, a Senate staffer close to
the process told me on Tuesday that at least a fair number of
Republican senators understand how important the judicial
nominations are, and that — probably beginning with Judge Boyle,
who has waited 15 years for his chance — the nomination logjam
should soon be broken. Specifically about Brett Kavanaugh, this
source said that Judiciary Committee Chairman Arlen Specter is
understood to be supportive, and that: “I think he’s going to move.
I think you’ll see his nomination start to percolate soon.”
And, noted the staffer, “We still have the nuclear option in our
back pocket.”
Here’s hoping the staffer is right. Because it’s long past time
to test the Gang of 14’s deal, and to use the nuke if it’s
needed.
