Random Thoughts on Judicial Selection

There has been an awful lot of press and spin lately about Pres. Bush's judicial nominations and the various machinations of the Senate to either appoint or stall these nominations. The politics of it all seems to have assumed a life of its own to the point where I wonder whether anyone outside of the Senate staffers directly involved really even understand what's going on.

As usual, too, I think the press has let us down. Too often stories on the subject merely repeat the spin of the two sides and ignore that much of this information is factual, i.e., how many nominations have been made, what has occurred in the past, etc. For example, I thought I stumbled across a decent primer on the subject at the NPR (I know, I know...) website yesterday.

In the primer, NPR predictably turned their sights on the GOP and what happened with Pres. Clinton's nominees since, as you will recall, there was a similar dispute during his term (more on that later). Here's what NPR had to say: "With respect to judicial nominations, the most effective tactic in opposition has been to bottle them up in committee. In the later years of the Clinton presidency, the Senate Judiciary Committee, which was controlled by Republicans, did not hold hearings for as many as 60 of his nominees, according to Democrats." [Emphasis Added]

That one little blurb explains why so many people are in the dark on this topic. Why doesn't NPR simply go back and review Clinton's nominations, review the proceedings, and tell us how many were held up in committee, rather than relying on Democratic spin? When earlier in the story NPR states that Pres. Bush has had 42 of 57 appeals court nominees confirmed, is that fact or spin?

The best source I have found on the issue is the Department of Justice. Here they point out that Pres. Bush has had 95% of his nominees confirmed overall, but 0% of his appellate nominees. Why is this important? Because it is the appellate court judges who are in the position to 'make law' or not. A District Court judge presides over trials and whatnot, but generally will (and should) defer to the higher courts on closer policy issues. Considering there are 46 vacancies out of 871 judicial posts (approx. 5%), I don't know if it is really a dire situation, but one would also have to question why there have been no appellate court nominations on only 3/12 hearings.

Supposedly, 2/3 of US Citizens oppose any rule changes to allow Pres. Bush's nominees to get votes. I guess I question, though, how many really know what they are even talking about. And when the question is framed as "changing Senate rules to make it easier for the Republicans," it is not a surprise that many people, especially those who do not understand the process, simply opt for the status quo. (One could make an argument that these are the people who would most likely support Bush's nominees since, as the more conservative judges, by definition they would be the most likely to keep the legal status quo.) How many people would have said yes had the question been framed as "should a small minority of Democratic senators be able to block otherwise legally qualified judges from the bench based strictly on ideological concerns?"

Hey! I know. What does the Constitution actually say?? It says the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

Let's think about this now. To make a treaty, the President needs two thirds of the Senate, or 67 Senators. That means the framers provided that 34 Senators ought to have the power to block a treaty. It does not require a supermajority, though, to appoint judges. Thus, 50 Senators should be required to block a judicial nomination.

When a Senator proceeds by filibuster, the Senate must invoke cloture to stop it, and cloture requires 60 votes, or 9 more votes than the Constitution intended. On its face it looks as though past Senates, by creating the filibuster and the concomitant rules, are flouting the Constitution. But this cuts both ways; it can harm or help either 'side' depending on the circumstances. But, forgetting the 'sides,' does it harm or help the Republic?