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The President's Decision to Resubmit Five Highly Controversial Judicial Nominees: Why It's a Mistake, and How to Fix the Broken Confirmation Process


Friday, Nov. 17, 2006

Despite the "thumpin'" he acknowledges Republicans took on Election Day 2006, President Bush has resubmitted five of his most controversial lower federal court nominees (and a sixth who is not controversial) to the Senate for confirmation.

The timing was not under Bush's control: Under the Senate Rules, the President had to do this after the extended Congressional break for the 2006 midterm elections, or the nominations would have been considered withdrawn. But the decision itself was, of course, all Bush's -- and it's a grave mistake.

A Filibuster Is Certain - so the President Can Only Prevail with the "Nuclear Option"

With this action, it appears that, despite promises to work with the Democrats, Bush is going to push the envelope with the lame-duck Congress, and try to jam these contentious nominees through the Senate while the GOP still has a majority, and control. (Carl Tobias proposes improvements to the federal judiciary that he argues should have bipartisan support in his guest column for this site today.)

The controversial nominees are Terrence Boyle of North Carolina and William James Haynes II of Virginia, nominated to the U.S. Circuit Court of Appeals for the Fourth Circuit in Richmond, Va.; Michael Brunson Wallace of Mississippi, to the Fifth Circuit in New Orleans; and William Gerry Myers III and Norman Randy Smith, both of Idaho, to the Ninth Circuit in San Francisco. (The uncontroversial nominee is Peter Keisler of Maryland, nominated to the District of Columbia Circuit.)

Leading Democrats have made their position clear: Democrats have already strenuously objected to all five of the controversial nominees. Sen. Patrick Leahy (D VT), who will chair the Judiciary Committee in the 110th Congress, has urged Bush to offer moderate "consensus" nominees instead. And Sen. Charles Schumer (D NY) -- a member of the Judiciary Committee with growing influence, given his work in enabling the Democrats to take control of the new Congress -- has flatly stated that he will block any judicial nominee who is not a moderate. Schumer says the Democrats will filibuster, if necessary.

That means the only way Bush could get all these nominees through the Senate is to employ the so-called "nuclear option." As I've discussed in a prior column, that option would amend Senate rules to eliminate the possibility of filibustering judicial nominees.

Bush Is Unnecessarily Setting an Ugly Tone for the New Congress

This set of nominations, then, is the first sign that Republicans have no interest in playing nice, or in operating in any bipartisan fashion. Rather, they are simply ignoring the message of the midterm election. And there are many more judgeships to be filled, during the remainder of the Bush/Cheney presidency.

According to the Department of Justice, there are currently fifty-one vacancies in the lower federal courts. Bush had twenty-nine judicial nominations pending before the election. He has now resubmitted six.

In addition, there is always the potential of another seat on the U.S. Supreme Court opening up before Bush's term ends. The most moderate-to-liberal-leaning members of the U.S. Supreme Court are not growing younger: John Paul Stevens is 86 and Ruth Bader Ginsberg is 73. And this reality keeps conservatives (who need only one more seat to have a lock on the High Court) salivating.

Bush has decided to continue his deliberately divisive ways, notwithstanding the election results. Apparently he believes that what helped the GOP lose in 2006, will somehow help them win in 2008.

Midterm Elections Called For an End to Divisiveness in Washington

For years now, Republicans have been openly and actively seeking to polarize the nation, employing a strategy orchestrated by Bush's top political adviser, Karl Rove. Wedge politics designed to divide the nation have become the GOP norm. As E. J. Dionne has written, "there is a beguiling openness about Mr. Rove's divisive and ideological approach to elections." It worked in 2002 and 2004. But it failed in 2006.

A recent headline in the Baltimore Sun summed it up nicely: "Political Scientist Says Last Week's Election Results Showed The Benefits Of Counting On Consensus Instead Of Polarization." In the immediate aftermath of the election, The Washington Post reported that President Bush wanted to end the divisiveness, apparently recognizing the message from the voters. It appears it took about forty-eight hours for the President and his team to revert to their old ways.

Bush's talk of bipartisanship in the days following the election now appears about as sincere as his clam, during the 2000 presidential campaign, that he would be "a uniter, not a divider." Little wonder that his approval ratings are down, and continue to sink lower.

Now that it is clear that Rove's polarizing strategy is still in play, and Bush is going to continue his politicizing of the federal judiciary, we must all hope that that the "Gang of Fourteen" (which earlier prevented the nuclear meltdown of the Senate) will again prevent the Republicans from employing their ploy to eliminate the right of any Senator to filibuster judicial nominations.

With Republicans headed toward minority status, it would appear very shortsighted to use the "nuclear option" in the Senate; after all, it will only mean that Democrats will use that option, too, and get their every wish when it comes to liberal nominees. But this is precisely the sort of short-term and self-serving - albeit self destructive - behavior that has become so common with the contemporary conservatives now running the Republican Party.

There is a fix, however. And this lame-duck session, or the opening of the 110th Congress, would be a propitious time for the Senate to gather its institutional pride, and take remedial action that could stop all presidents, now and in the future, from politicizing the federal judiciary.

Fixing the Broken Confirmation Process

As many readers will recall, in 1968 Senate Republicans (then the minority party) successfully filibustered President Lyndon Johnson's effort to elevate Associate Justice Abe Fortas to the post of Chief Justice. LBJ's Senate lieutenants could not muster the votes necessary to break the filibuster, so Fortas withdrew. That experience set the precedent that Democrats have followed with President George W. Bush's hard-right conservative judicial nominees.

For example, in the 108th Congress, Democrats successfully filibustered the nomination of Miguel Estrada to a seat on the U.S. Court of Appeals for the District of Columbia. After Estrada's supporters made seven unsuccessful efforts to break the filibuster, he withdrew.

It takes three-fifths of the Senate, a supermajority of sixty Senators, to end a filibuster. In the 109th Congress, Democrats successfully filibustered on some ten occasions, thereby blocking several of the nominees Bush has resubmitted.

Republicans are unable to muster the supermajority necessary to end a filibuster by the Democrats. In short, for Bush's controversial judges to be confirmed, he needs either a supermajority that he does not have, or the "nuclear option."

Employing the "nuclear option" might not be procedurally (as opposed to politically) difficult. It would only require a ruling by the presiding office of the Senate - most likely, Vice President Dick Cheney wearing his hat of President of the Senate - holding that a filibuster of a judicial nominee is out of order. (Typically, according to the Rules of the Senate, a two-thirds vote of the Senate is required for a rule change. But this back-door method allows a rule change by a simple majority supporting a ruling from the Chair.) If the Chair were to so rule, it would take a majority, which the Democrats do not have, to overrule the holding.

This ploy has been labeled "nuclear" because of the fallout likely to occur if it is used. It is of dubious constitutionality, but no Court has power to overturn it - as I explained in my prior column. So were Cheney to so rule, that ruling could forever change the Senate as we know it. Granted, Democrats might reinstate the filibuster in the 110th Congress, when they have a majority, via another ruling from the chair. But once this weapon has been used, the possibility it may be used again will remain very real, and minority-party rights in the future will therefore be significantly diminished, to all of our detriment.

Before the Republicans exercise the nuclear option, and start a fight that could deeply damage the Senate as an institution, the Gang of Fourteen - which includes the soon-to-be-very-powerful Senator Lieberman, possibly a "swing vote" as of January -- should take action beyond merely finding a compromise as to these particular five nominees.

Actually, the Gang of Fourteen should go much further -- by leading the Senate to change the Senate Rules regarding the confirmation of all federal judges for all presidents, now and in the future.

The Solution: Requiring a Supermajority to Confirm All Federal Judges

Because of the threat of a filibuster against any judicial nominee, there is always the potential that a president needs a three-fifths vote - sixty Senators - to win confirmation. True, current Republicans could use the nuclear option to change the rules and jam through Bush's nominees, but only at great expense -- for Democrats, who will control the Senate come January, will (and should) retaliate.

The Rules of the Senate, unlike those of the House, do not expire at the end of a Congress. (Because only a third of the Senate has terms expiring every two years, the Senate considers itself a continuing body.) Thus, two-thirds of the Senate, either now or in January, could decide to end the partisan efforts to pack the federal court with ideologues if they so choose. Here's how: Change Senate rules to require that all federal judges and all Supreme Court Justices require a three-fifths vote to be confirmed.

The Appointments Clause of the Constitution does not prohibit such a rule change. Indeed, under the Constitution, the Senate has power to set the rules for its proceedings as it sees fit. By long tradition, the Senate has protected the minority from the will of the majority - adding further checks and balances to our system. This solution would go further towards achieving that end.

Justices and federal judges are distinct from all other presidential appointees requiring advice and consent of the Senate, in that they serve for life, unless impeached (which is extremely rare). Requiring supermajority approval of the Senate to confirm the president's judicial appointments would be consistent with this unique status. After all, the rulings of a forty-something nominee, if he or she is confirmed, may affect the country for fifty years or more.

Suppose such a rule were to be put in place. Presidents simply could not - as they increasingly have done in recent years - continue to pack the federal courts with extremist judges whom they believe will implement a particular political ideology, rather than simply offering reasonable interpretations of the law.

To get a supermajority vote would require the nomination of judges and justices acceptable to both parties; the names of the extremists, on both sides of the political spectrum, would necessarily drop off the lists. And that's a good thing for everyone, Today, the politicized federal judiciary is losing the respect and trust of Americans, who increasingly view the judiciary not as a respected lawgiver, but merely as yet another fractious, partisan institution, and an illegitimate one at that.

Such supermajority rule changes have happened before. In 1994, when Republicans took control of the House for the first time in forty years, they broke with more than two hundred years of tradition by adopting a rule that required a supermajority for bills raising taxes. (House Rule XXI now states that federal income tax rate increases shall not be "considered as passed" unless agreed to by three-fifths (60 percent) of the members voting.)

In short, the Senate has it within its power to end the downward spiral through which judges are increasingly selected for their political views -- rather than for their legal skills, judicial temperament, and wisdom. The Senate need only amend its rules to require a supermajority for confirmation of Justices and judges to change this troubling flaw in our system.

Sadly, however, I doubt that two-thirds of the Senate has the courage to tell the president to stop playing politics with judges and justices. It's clear, however, that would be the right thing to do.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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