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“Judicial Nominations”- the High School Musical

By August 18, 2011Legal
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The phony attack on Republicans for the slow pace of judicial confirmation is cute, but lacks credibility. Like a poorly rehearsed high school musical, liberal commentators come out in their charming outfits and do their judicial numbers dance, while family and friends cheer them on. Everyone else would rather listen to fingernails scratching a chalkboard, but hey, they’re having fun.

In a recent Politico op-ed, Andrew Blotky and Doug Kendall described “the threat to justice by our overworked federal judiciary.” Good, I thought. It is refreshing to hear liberals finally coming to our side and joining the chorus of conservative voices asking for fairness in the process.

Remember the disgraceful obstruction of President George W. Bush’s nomination of Miguel Estrada, the first Hispanic nominated to the United States Court of Appeals for the D.C. Circuit? Unable to block Estrada’s nomination and knowing he would be confirmed if a Senate vote was allowed, Democrats used an unprecedented partisan filibuster to prevent a vote from ever taking place. Democratic emails later revealed one of the reasons they filibustered Estrada was because of his Hispanic heritage. They wrote in emails that he was “especially dangerous, because he ha[d] a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment” (emphasis mine).

Estrada was the most egregious filibuster but he was certainly not the only one. Other Bush nominees filibustered by Democrats included Priscilla Owen, Janice Rogers Brown, William Pryor, Charles Pickering, Carolyn Kuhl, Henry Saad, William Myers, David McKeague and Richard Allen Griffin.

Terrence Boyle was nominated by President Bush to the Fourth Circuit in May 2001 and lingered in the Senate for six years (2001-2007) because of the Democrats’ obstruction. That made him the longest appellate court nomination blocked. Bush later nominated Robert Conrad to that seat and he also was blocked. President Obama ended up filling that seat with Judge James Wynn.

We can keep going, Peter Keisler, Rod Rosenstein, etc.

One would think all those examples would be addressed by liberals in their cry for “justice” in the nominations process, right? Wrong. Blotky and Kendall conclude: “The third branch is deteriorating largely because of unprecedented Republican obstruction.” Uh?

The New York Times‘ John Schwartz didn’t do much better: “So far, Mr. Obama has had 97 of his judicial nominees confirmed – compared with 322 for President George W. Bush and 372 for President Bill Clinton, who each served two terms.”

Is he serious? Did he just compared President Obama’s first three years in office to Presidents Bush and Clinton’s eight? Sure did.

You have to love the reasoning. Apparently the Senate should have done in three years for Obama what they did in eight years during the Bush and Clinton administration. Don’t get me wrong, I’m all for streamlining and making government more efficient, but that seems a little over the top to me.

Adam Serwer at the Washington Post did his part on his piece, “Obama must get tougher on GOP obstructionism. The future of our courts is at stake.” He writes: “if Republican obstruction and administration indifference continue, the conservative domination of the federal bench could dramatically alter the country for years to come.”

Enter Debbie Hines, who gave us this gem at The Huffington Post: “It seems that never before in the history of the judicial nominating process has there been such an extreme back log and delay of hearings and votes on judicial nominees.” What a joke.

It would seem they all started following the nominations process two days ago.

Such a liberally-charged myopic commentary on the judicial nominations problem serves only to rile up the base, just in time for campaign season, but it contributes very little to what should be a very serious and important debate on the role of judges under the Constitution.

The attacks purposely focus on anything but substance. They work on slogans and sound bites aimed at stirring up controversy and scoring political points, but fail to do the hard work required to make an objective assessment of the confirmation process.

A good place to start, as always, is to look at yourself in the mirror before focusing on your opponents faults. An honest approach to this dilemma would consider the all-out assault on President Bush’s nominees before going on and on about the “Republican obstruction.”

Beyond that, take a look at what President Obama is doing. Why has he been so slow in nominating judges? More to the substance, is it proper to select judges based on their race, gender or sexual orientation? Should judges be selected based on their “empathy” toward a selected group of people or should a judge show “fidelity to the law,” regardless of a party’s race, gender or sexual orientation, as Justice Sonia Sotomayor testified during her confirmation hearings? Are judges supposed to develop our constitutional rights over time?

These are the types of questions that a serious debate on the issue demands we answer because they form the standard by which we can properly judge the President and the Senate’s performance in selecting and confirming them. But that requires a more balance and thoughtful approach that most liberal commentators seem unwilling to undertake. It requires, dare I say, a more honest approach. At least, more than the typical political song and dance routine.