In a Wall Street Journal editorial entitled Who Will Judge the Inquisitors?, Richard Epstein discusses Supreme Court nominee John Roberts and Democratic Senator Schumer’s initial comments:
…I have never met Judge Roberts, nor, for that matter, read a single one of his opinions. But I knew that he enjoyed the reputation as one of the keenest intellects and best Supreme Court advocates in the highly competitive Washington legal market. A glance at his gilt-edged resume — his 1979-80 clerkship with the late Judge Henry Friendly on the Second Circuit Court of Appeals leaps out — only increased my confidence in his nomination. His familiarity with complex business matters counts as a big added plus. Well done, I thought. This should be a cakewalk.
Then I heard Senator Charles Schumer, somber and self-righteous, reach, as he so often does, for the microphone, to announce that gilt-edged credentials are not enough. In his view, all nominees must be vetted for the soundness of their ideological positions. More pointedly, he observed that when John Roberts was up for a Circuit Court judge position, he refused, under questioning, to identify three Supreme Court decisions that he disagreed with. This time round, Sen. Schumer warned, that evasion will not work…
Now, if you want to see a double standard at work, consider this posting from Hugh Hewitt entitled The Ginsburg Precedent:
“I prefer not to answer questions like that; again, to talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case,” was the response of Ruth Bader Ginsburg to Patrick Leahy’s 1993 question to then nominee Judge Ginsburg on which of the two religion clauses of the First Amendment was subordinate to the other.
Judge Roberts will no doubt be spending a lot of time with the transcripts of the confirmation hearings, especially that part where Senator Leahy says “I understand. Just trying, Judge, just trying” in response to Justice Ginsburg refusal to engage in great debate over constitutional principles.
This article by Jay T. Jorgensen explains in detail the importance of the precedents established by the Ginsburg hearings. One of his many key findings:“Justice Ginsburg declined to answer questions about her views on both prospective and many historical Supreme Court cases. She also declined to answer questions (or gave non-responsive answers to questions) involving a number of controversial issues, hypothetical facts, or areas in which she is not an expert.”
Nothing has changed in 12 years, except that the president nominating the justice is George W. Bush and not Bill Clinton. The MSM will attempt to prop up the wild claims of Senators Leahy and Schumer about the duties of nominees, as the New York Times editorialists did this morning when they wrote “[t]he Senate has a duty to scrutinize his background and to question him closely at his confirmation hearings about substantive areas of the law.” But when biased papers invent such “duties,” or when Ted Kennedy makes the statement that “[n]o nominee, especially a nominee who is well known to have argued ideological positions on issues important to the American people, should be confirmed without full and candid disclosure and discussion of those positions and their importance to him,” the Ginsburg precedent must be close at hand.
Useful activism: The Jorgensen article is easily linked and e-mailed. Bloggers should feature it prominently on their blogs, and activists should e-mail it to columnists and editorial writers at every level of the media. It will especially be useful if hundreds of activists e-mail it to D.C. talking heads so that they have no excuse for indulging the Schumers and the Leahys who hold forth on the duty of nominees to answer loaded questions…
Here is the list of questions Senator Schumer has for Judge Roberts.
Mark Levin comments:
Justice Scalia gave a speech about the Pledge of Allegiance, in which he took a position on the words “under God.” As a result he was compelled ethically to recuse himself from the case. A nominee for the Court, giving answers under oath, is under a similar obligation. It would be irresponsible to give direct answers to inappropriate questions.
Robert Alt explains further:
[Open full post]During recent confirmation hearings, Senate Democrats have taken to asking candidates very specific questions about legal issues which are likely to come before their prospective courts. Such questions have presented the nominees with a Catch-22: If the nominees answer the questions, then they risk running afoul of the codes of judicial ethics, and may be required to take no part in cases raising that issue coming before the court. If, however, the nominees choose to point out that judicial cannons prohibit them from answering the question, then they face rejection by Senate Democrats for not being sufficiently forthcoming.
“Breaking the Glass Taboo,” my latest column for TheFactIs.org, responds to Providence Journal editorialist M.J. Anderson’s nostalgia for the days of the Baby Boomers’ youth and to recent research finding that removing men from the home can be part of a recipe for creating “exceptional” boys.
I didn’t go into this in my column, but have you ever noticed that “progress” increasingly seems like a bend around the cultural track back to our primal days? Well, consider what it would imply for men’s behavior if society accepted the notion that fathers needn’t be bound to the children whom they beget.
The following words are written in a new Wall Street Journal editorial entitled No More Souters:
[Open full post]…the record across recent decades is that justices who join the High Court without a clear and confident jurisprudence eventually become part of what has been a longstanding liberal majority…
By “liberal majority,” by the way, we aren’t merely referring to such issues as abortion or gay rights. Our objection to Roe and to Lawrence, the Texas sodomy case, isn’t on the underlying policy. It is that the Court has hijacked those social disputes from democratic debate, preventing the kind of legislative compromises that would allow a social and political consensus to form. As federal appeals court Judge J. Harvie Wilkinson put it recently in an address at Duke University Law School, “In this sense, a restoration of [judicial] restraint assists the restoration of good will, because democratic governance gives everyone their say.”
But there are many other issues on which the post-Warren justices have arrogated to themselves an almost legislative authority: overturning voter-passed Congressional term limits by 5-4, dictating racial and gender preferences in law, extending the Commerce Clause to encompass virtually any federal authority as in last term’s Raich medical-marijuana decision, or expanding eminent domain in Kelo.
This is the history…
But the larger goal should be to pick someone who has the intellectual conviction and firepower to help restore the High Court to its more restrained historical role. In a phrase, this means putting an end at last to the judicial legislating that was unleashed in the Warren era and that has slowed only on occasion ever since.
Thanks to Andrew for the heads-up about a posting in today’s kausfiles:
[Open full post]Test Scores Improving, NEA In Full Damage-Control Mode! Want to know what to make of those recent encouraging NAEP test score results, which the Bush Administration promptly hailed as “proof that No Child Left Behind is working.” As usual, Eduwonk is the place to start. … Anti-NCLB groups (e.g. the National Education Association) argue that since the NCLB had only been in effect for a year prior to the test, it can’t be credited with the results. But as Education Week noted:
…many states had already begun making such changes and focusing intensely on improving reading and math instruction after the 1999 national assessment and prior to the federal law’s implementation.
There’s a similar argument in the welfare debate: Why did all sorts of indicators (e.g., teen pregnancy, caseloads) start to improve in the years before the enactment of the 1996 federal reform? President Clinton attributed the results to state reform efforts that preceded the federal law. The case for a similar effect in education seems at least as strong, if not stronger. Weren’t pre-NCLB state efforts to require more testing and accountability far more pervasive than pre-1996 state efforts to require more welfare recipients to work? …
P.S.: The good news in education, of course, may in itself also be good news for welfare reform. One of the dreamier welfare reform theories, remember, was that kids whose parents worked (and who lived in neighborhoods in which more other kids’ parents worked) would do better in school. Liberal writers have made big splashes by noting individual cases in which this dynamic did not seem to be at work, in part because welfare reform pushed poor single mothers to hold down jobs that took them away from their kids. All welfare reformers could say, in effect, was “Let’s wait until we see how these big changes in neighborhoods play out across the whole population over many years.” Well …. Certainly results like the NAEP’s (which showed especially big gains for black 9-year-olds) make it harder to argue that the 1996 welfare law, by requiring mothers to take jobs and leave their kids, has had a negative overall effect on kids’ school performance.
The headline on today’s Financial Times article about Iraq suffers from a double standard all too common in MSM reporting.
Weekend of slaughter propels Iraq towards all-out civil war.For some reason, continuing violence directed against a population does not constitute a state of war. Only once the population fights back in a systematic way do the evils of war attach. So to avoid war, all you have to do is not fight back against organized killers. [Open full post]
Thanks to Chuck over at The Senescent Man, check out this website entitled Kay Coalition Against Casino Gambling (KAYCO), which is a statewide coordinating body helping local community groups to resist the spread of the gambling industry in their neighborhoods.
Casino gambling serves no positive social purpose. We must continue to oppose all attempts to impose it any further on our state.
Nothing is more unjust to the working families and retirees of America than to over-pay for under-performance. In other words, not to get fair value for our hard-earned monies.
It is in that context where this blogsite has been appropriately critical of both public sector unions and private sector unions. Follow all the links at the bottom of postings here and here for concrete examples. In some of the latter postings, the imbecilic actions of certain management teams have also been criticized.
No less of a problem in our society are the corporate welfare queens who exist like parasites living off their manipulation of a bloated federal government, thereby reducing many Americans’ standard of living through hidden and completely unnecessary taxes.
The article entitled Sugar Daddies: How sugar interests rip off America and harm the national interest provides a classic example of a corporate welfare queen:
In a hall of fame for corporate-welfare queens, the sugar industry would occupy a place of special honor. For decades, powerful sugar growers have gotten politicians to enrich them with a protectionist scheme that inflates domestic sugar prices to the detriment of American consumers, American manufacturers, American farmers, and the American economy as a whole…
The program allows sugar processors to take out loans from the USDA by pledging sugar as collateral. The loan rates – 18 cents per pound for cane sugar, 22.9 cents per pound for beet sugar – are significantly higher than average world sugar prices. These loans must be repaid within nine months, but processors also have the option of forfeiting their sugar to the government in lieu of repaying their debt.
This arrangement effectively guarantees that the processors receive a price for their sugar that is no lower than the loan value: If prices fell below that level, they would simply forfeit their sugar and keep the government’s money. In order to avoid that scenario, the USDA must prop up the domestic price of sugar. It does this by controlling supply through two mechanisms. First, it sets quotas on how much foreign sugar can be imported without facing prohibitive tariffs; second, it regulates the amount of sugar that domestic processors can sell.
The consequence is that sugar in the U.S. has, over the past decade, cost two to three times the average world price. The sugar industry likes to point out that the program requires no government outlays, since processors repay their loans each year (assuming the government keeps sugar prices sufficiently high). This argument is sound if one regards the sugar program as a question of federal bookkeeping, but that is only because, in this case, the government does an uncharacteristically efficient job of plundering taxpayers to pay off a special interest: It simply cuts itself out as middleman. Each time you buy sugar or a product made with sugar, the difference between the price you pay and the lower price you would pay absent the sugar program’s dirigisme can be thought of as a sugar tax. Unlike most taxes, this tax never finds its way to government accounts. Instead, it passes directly from your pocket to the sugar industry’s profit statements.
A GAO study found that, between 1989 and 1991, the sugar tax cost American consumers an average of $1.4 billion per year. By 1998, that number had risen to $1.9 billion. Other costs are borne by manufacturers who use sugar as an input. Faced with high domestic prices, some confectioners have moved to countries without sugar price supports, such as Canada. Others have simply shut down…Without the program, resources currently devoted to sugar production would shift to more efficient sectors of the economy and create new jobs.
The sugar program is a case study in how small, concentrated interests can trump larger but more diffuse ones. By any measure, the U.S. sugar industry is minuscule. It employs only 62,000 people and comprises less than 0.5 percent of U.S. farms. But because it profits so richly from the current protectionist scheme, it has a powerful incentive to keep that scheme in place.
It does so by donating extravagantly to political candidates. One lobbyist who works with trade issues says, “[The sugar industry] is collecting monopoly rents. Any industry in a position of collecting monopoly rents will spend back a significant portion of those rents to maintain those monopolies.” Although sugar accounts for just 1 percent of U.S. farm receipts, 17 percent of all campaign contributions from the agricultural sector between 1990 and 2004 came from the sugar lobby.
Perhaps no political investment has brought a higher return. The GAO report found that sugar producers gain around $1 billion a year from the artificially high prices that the sugar program guarantees. Some growers have gotten exceedingly rich…
Nowhere does the sugar lobby pursue its interests more ferociously than in debates on free trade. Having successfully lobbied the Bush administration to exclude sugar from the recently ratified free-trade agreement with Australia, sugar producers are now determined to kill the Central American Free Trade Agreement, on which Congress will vote sometime this summer.
CAFTA, which would eliminate most trade barriers between the U.S. and Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and the Dominican Republic, is, if anything, embarrassingly deferential toward the sugar lobby. After its full implementation over a 15-year period, it would allow participating states to increase their sugar exports to the U.S. by only 1.7 percent of current U.S. sugar production. The sugar industry is nevertheless intransigently opposed to the pact, and has rejected every suggested compromise.
If the sugar lobby derails CAFTA, its success will, once again, represent the triumph of the few at the expense of the many. CAFTA would bring modest but not insignificant economic gains to both the U.S. and Central America. Perhaps more important, it would advance efforts to create a Free Trade Area of the Americas, and would strengthen the Central American middle class while making the economic and legal systems of participating states more open and transparent…
It is deeply exasperating that a tiny sector on which CAFTA’s effect would be almost negligible is within striking distance of scuttling the agreement. The obstinacy of sugar producers looks especially unreasonable when one considers that protectionism has increased their share of the domestic market from 55 percent in the late 1970s to 89 percent in 2002, and when one notes that population growth over the next decade is likely to increase demand for sugar, thereby offsetting any lost income to the industry…
…The United States has no reason to grow sugar, and every reason not to. It is a simple question of comparative advantage, as Dennis Avery, a former agriculture analyst for the Department of State, explains: “Yields of sugar in the tropics are twice as high and the costs half as high as growing sugar in temperate regions.” The U.S. sugar program thus defies both nature and economics; in guaranteeing an artificially high price for sugar, it encourages American farmers to plant sugar instead of crops they could grow more efficiently. Ending the domestic sugar program would require them to switch to the crops they should have been growing all along.
While liberalizing world farm trade would probably put a stop to domestic sugar production, it would also, according to Avery, mean that U.S. farmers who now grow sugar beets…could sell wheat to China and India, and make far more money than they do from this sugar…Cane growers in Florida and Louisiana would have a somewhat harder time of it, since little else could grow on their lands…Smaller farmers could be compensated for their loss, and their transition eased by a gradual phase-out of the sugar program.
The benefits of ending domestic sugar production would not be merely economic; Avery sees liberalized farm trade as…both the leading environmental issue and the leading trade issue in the world…Given long-term population trends, countries will have to specialize in crops for which they have a comparative advantage…or else undertake policies with disastrous environmental consequences…
…domestic producers will not acquiesce in the removal of their government-mandated profit margins…
The real test will come in 2007, when the next farm bill is negotiated. Reformers should seek nothing less than the total dismantling of the sugar program…
These sweetheart deals – that benefit a few to the detriment of the many – are economically wrong and morally wrong. They must end.
To conclude, ask yourself why such sweetheart deals like the one described above exist in the first place. The answer is part of a much broader issue, which was addressed in an indepth posting entitled A Call to Action: Responding to Government Being Neither Well-Meaning Nor Focused on the Public Interest. I would encourage you to read that posting carefully.
Governor Carcieri has put forth his case against the privatization of Beacon Mutual in today’s ProJo. First, there are risks:
Rhode Island employers should worry about this expansion because Beacon is not just any insurer. Beacon has two statutory duties that no other insurer has: First, Beacon must offer insurance at the lowest possible cost to Rhode Island employers; it cannot raise rates just to fatten profits. Second, Beacon is the “insurer of last resort” in Rhode Island.
Other workers’-comp insurers may decline to cover an employer for a variety of reasons, but Beacon may not. This obligation is the bedrock on which our entire workers’-comp system is founded. The governor’s appointments to the board are designed to ensure that Beacon fulfills its public mission.
If Beacon is permitted to expand outside Rhode Island and its management is not as successful in competing in those new markets as it predicts, the out-of-state losses could affect our own workers’-comp market. A failure by Beacon to profit in other states could drive up rates for Rhode Island businesses. Why should Rhode Island employers place at risk the reserves that they have built up at Beacon to pay losses from out-of-state businesses?
Then, the rush to push the legislation through doesn’t pass the smell test.
Instead of a well-studied proposal that would benefit the people and businesses of this state, we seem to have on our hands another example of the Rhode Island insider network plying its trade at the State House. Did we learn nothing from the scandals involving the insiders at Blue Cross? Did the General Assembly miss the national debate over corporate-governance standards?
We don’t need another out-of-control nonprofit insurer. We’ve seen this story before.
Instead of weakening public scrutiny over this public corporation, we should be increasing Beacon’s corporate-governance standards. I will introduce legislation in the next General Assembly to do just that.
Finally, there are the questions about the money Beacon is spending and taking in. How are they spending what they’re taking in?
Instead of acceding to the demands of Beacon’s well-paid management team, let’s start asking it hard questions: Why did Beacon rack up travel expenses of more than $600,000 in 2004 to operate a company that insures only Rhode Island businesses? Is it appropriate for board members of a nonprofit company to profit from their public service? And, most important, why does Beacon need to continually add to its surplus, when the surplus already stands at $115 million, on top of its $274 million in loss reserves?
Shouldn’t more of Beacon’s $6.4 million profit in 2004 be returned to the policyholders?
Instead of falling over itself to approve this insider legislation at record speed, the General Assembly should be holding hearings to get to the bottom of these questions.
Yes, they should. I would say we are going to be seeing another veto pretty soon.
[Open full post]The North East Independent and the East Greenwich Pendulum, our two local newspapers, carried two stories this week that reinforce, yet again, why public schools are structured in a way where neither teachers nor bureaucrats act in ways that lead to a level of excellence necessary to provide our children with a superb education and the ability as adults to compete successfully in a global economy:
The first had to do with the hiring of a high school chemistry teacher who twice – yes, twice – failed beginning chemistry courses. Here is an excerpt from the Independent:
The School Committee approved the appointment of a teacher Tuesday night that some board members fear may be unqualified.
In a 4-3 vote the board appointed Lesley A. Fastovsky as chemistry teacher at the high school even though Fastovsky’s transcripts from the University of Rhode Island show that she failed numerous chemistry courses as an undergraduate. The appointment is for one year only…
Committee member Sue Cienki, who carries an undergraduate degree in chemistry herself, said she is furious that a person who had so much trouble with chemistry will be responsible for teaching the subject to students in East Greenwich.
“I am absolutely infuriated by this,” she said. “I have a little trouble in having someone who could not pass a general chemistry class teaching in our district.”
Fastovsky’s transcripts drew ire from a number of members on the board. As an undergraduate, she twice failed Chemistry 101, the general chemistry lecture offered by the university, in 1989 and 1990. In fact, Fastovsky did not even complete the course at the university, instead taking the class at the Community College of Rhode Island in 1992 and transferring the credits to URI.
Fastovsky once again had problems with the subject in 1993, failing Chemistry 112, the second level offered at URI. She would take the class again the next semester, passing with a D.
Committee member Merrill Friedemann, who joined with Cienki and committee member Steven Gregson in dissenting on the vote, said she could not believe what she saw in the transcripts. With the committee making a number of appointments for the upcoming school year, she said many of the applicants had graduated with honors, making this hiring strange.
“All of the other applicants [for other appointments] came very highly recommended,” she said. “This one seemed like an anomaly.”
Faculty and administration members came to the defense of Fastovsky, asking committee members to look at the classes she took as a graduate student and how she has improved over the years…
Peter McLaren, the science department chair for the district, said that emphasis should not be placed on early grades, admitting that he has an F on his transcript as well. He noted that Fastovsky is certified to teach chemistry, having taken more than 24 credits in the subject after achieving her bachelor’s degree…
…Cienki was not swayed by these arguments. Looking at her transcripts, Cienki said Fastovsky may be qualified to teach other subjects, like geology, a subject in which she performed well in at URI, but maintains that she is not what the district should be striving for in its search for a chemistry teacher.
Despite Fastovsky’s achievements in her master’s work, Cienki said many of those subjects will not come up in a high school course.
“This woman couldn’t get the basics, which is what she is responsible for teaching to the students,” she said. “Now I want to sit in that class next year and see what she can get across.”
The second was presented in a story carried by the Pendulum that showed, yet again, how the teachers’ union contract allows manipulation of the system by teachers for their own benefits – regardless of whether that is best for our children:
…School Committee members Marilyn Freidemann and Sue Cienki were alarmed by the contractual policy which allows teachers on a leave of absence or sabbatical to bid on jobs opening up while they’re on leave. “It was my understanding, that we granted teachers sabbatical with the expectation that they come back to their original position,” said Freidemann.
Freidemann and Cienki were concerned over Cole Middle School science teacher Andrew Longo’s bid for East Greenwich High School biology teacher Tom Collin’s old job for the 2006-2007 school year, which means hiring a teacher to fill that position for one year until Longo’s leave of absence ends and he can take over. The head of the high school science department, Peter McLaren, recommended hiring Christopher Wren for a one-year biology position at the high school and Marcia Wicker for a 1.0 science position at Cole. This would allow Longo the high school biology position, starting August 30, 2006.
Freidemann and Cienki felt their hands were tied. “We’re trapped,” said Freidemann. “Supposedly, Christopher Wren is a wonderful candidate. Too bad we can only hire him for one year.”…
The committee could not approve Wicker and Wren without approving Longo. “If these people are not approved, there will be a collapse in the science department,” said McLaren…
According to McLaren, Longo, who is representing the East Greenwich school district at a widely recognized national science program, has gained “professional development, and a raised awareness of science, skills he can utilize in the classroom.” But Freidemann wasn’t having it. “It has nothing to do with what they’re bringing back to a different classroom. After being given sabbatical, they should come back to teach the grades they were teaching.”
Freidemann went on to condemn the purpose of asking for sabbatical. “Well, now we know why they want one. Clearly, it’s just for their own professional development.”
Longo, who was actually granted a two year leave of absence, has the right, according to union contract, to bid on any position while he’s on leave because of his seniority. As Cienki and Freidemann browsed through the contract, Ross was quick to understand how it works. “The contract is more protective of his right to return [not his obligation to]. And, as it’s constructed in protection of teachers’ rights, it allows them the means to bid on any position while on leave.” Freidemann agreed. “You’re right. And we need to change it.”
But there could be no changing of the contract that evening. So the heated discussion railed on…
Thanks for the School Committee members for speaking out and protesting this tolerance within the public school system for mediocrity and manipulation.
And that begs the ongoing question: Why does our society tolerate this ongoing and actively defended mediocrity by public school teachers and bureaucrats?
Republican Sen. Orrin Hatch writes in National Review Online about the proper method of “advise and consent” that should be exercised by the Senate with regards to the process of nominating a Supreme Court Justice.
The fact that the president and the Senate each has a role, however, does not make those roles co-equal. The Founders’ view that the president is the “principal agent” and this new theory that the president and Senate are “co-equal partners” cannot both be true. The purpose of this novel theory is obvious, and it is to change the Constitution’s assignment of judicial selection roles in order to appoint different judges. As Senator Edward Kennedy said on the Senate floor on July 12, the consultation Democrats demand “is more than a process, it’s about an outcome.” That outcome is a “consensus” nominee who will win “widespread bipartisan support,” whether or not it is whom the president wants to appoint.
In other words, this scheme aims at forcing the president who did win the election to nominate someone acceptable to his opponents who did not. It seeks to turn consultation into co-nomination. Not content to exercise the role the Constitution does assign to the Senate by vigorously debating and then voting on a nominee, these senators and their left-wing enablers want to create a role the Constitution does not assign to the Senate, by manipulating the president’s choice of a nominee.
This invented arrangement may serve their political agenda, but it is radically different from what the Constitution prescribes. Especially where the judicial branch is concerned, we should prefer the Constitution over politics. And the Constitution allows the President to decide how best to fulfill his constitutional responsibility of nomination.
He also notes the sudden increase in citation of his book, Square Peg, by Senate Democrats demanding a role in picking President Bush’s Supreme Court nominees. He warns them to not take his words out of context.
[Open full post]In 1993, President Clinton sought my input when considering a replacement for the retiring Justice Byron White. Some senators are today fond of waving my book Square Peg, in which I described cautioning President Clinton that confirming some candidates he was considering, such as then-Interior Secretary Bruce Babbitt, would be difficult. President Clinton instead nominated Ruth Bader Ginsburg, and she was easily confirmed.
President Clinton sought my input without my demanding it because he believed it would help him fulfill his constitutional responsibility for making judicial nominations. He did so not because Senate Republicans threatened filibusters or demanded some kind of veto power over his nominations. We did not try to impose a “consensus” standard or insist that a nominee meet some super-majority “widespread support” threshold.
Instead, President Clinton sought my input because I had established a cooperative relationship with him, because he knew his nominees would be treated fairly. Senators demanding consultation and threatening filibusters today might instead consider taking the same approach. Perhaps earning consultation will work better than demanding it.
While I appreciate publicity for my book, I have yet to hear a Democratic senator who holds it up also quote from page 126, where I write: “One of the consequences of a presidential election…is that the winner has the right to appoint nominees to the court.” In fact, at the same time I was giving President Clinton the input he sought, I also said on the Senate floor: “The President won the election. He ought to have the right to appoint the judges he wants to.” Some who today demand consultation appear to have rejected that notion altogether.
In the end, the constitutional principle is simple. The president, not the Senate, makes judicial nominations. The Senate’s role is a check on appointment, not a veto on nomination. Every president must decide for himself what will help him fulfill his constitutional responsibility. President Bush has chosen to reach out to more than 60 senators for input, including more than half of the Democratic Caucus and every member of the Judiciary Committee. Such consultation, as well as his eventual nomination, are his choice.
Shortly after President Bush took office in 2001, the Senate Democratic leadership vowed to use “whatever means necessary” to defeat undesirable judicial nominees. That spring, Democrats huddled with left-wing strategists to “change the ground rules” for the judicial-confirmation process. The filibusters that followed and the current demand for “consultation” and “consensus” nominees is part of that strategy. As Senator Kennedy put it, this is not about a fair process but a desirable outcome. The Senate’s integrity and the judiciary’s independence, however, requires rejecting political gimmicks and sticking with constitutional principle.
