Republicans will now control both the nomination and confirmation of federal judges for the first time since 1986. Seizing this opportunity requires a strategic plan.
When President Bush took office, Senate Democrats started a campaign to block his judicial appointments. They hoped it would help them keep Senate control and win the next fight over a Supreme Court vacancy.
The campaign started with an unprecedented 42 votes against John Ashcroft’s nomination as attorney general. That vote, as Sen. Charles Schumer (D.-N.Y.) put it, was designed to send a "shot across the bow" on future judicial appointments, since 41 votes will sustain a nominee filibuster. Then-Senate Majority Leader Tom Daschle (D.-S.D.) vowed Democrats would "use whatever means necessary" to defeat conservative judicial nominees.
The Democrats’ plan for politicizing judicial selections began when they huddled with leading leftists at their spring 2001 retreat to talk about changing the judicial confirmation rules. After that, Schumer chaired unprecedented hearings on using ideological litmus tests to defeat Bush nominees. Democrats defended, then ignored, nominee ratings by the American Bar Association. They considered, then ignored, support by a nominee’s home-state senators.
For the first time in a dozen years, the Judiciary Committee voted down nominees and denied the full Senate a chance to vote. Only six nominees in the last 60 years have met that fate, five in Democratic Senates. One appeals court nominee this year, Priscilla Owen, became the first female, and the first nominee with a unanimous "well qualified" ABA rating, to be rejected by the Judiciary Committee.
While his three predecessors saw their first appeals court nominees confirmed in an average of 81 days, after 560 days two-thirds of President Bush’s first nominees still languished in the confirmation pipeline.
Democrats put their obstruction campaign on the ballot, and lost. Nonetheless, they will regroup. Majority status allowed them to make a frontal assault on nominees by voting them down in committee. Minority status will mean a guerrilla war to kill nominees by filibuster on the Senate floor.
Sure, in the past Democrats have denounced nominee filibusters-at least of Clinton nominees. Daschle has said allowing the full Senate to vote on nominations is "a question of fairness." Outgoing Senate Judiciary Chairman Patrick Leahy (D.-Vt.) said the Senate "should have a vote up or down."
But actions speak louder than words. During the 1980s, Democrats filibustered Republican nominees to all three levels of the federal judiciary. Three times as many Democrat senators voted to sustain them as Republicans have voted to sustain their filibusters.
In a November 10 editorial, the New York Times said that Senate Democrats "should not be afraid to mount a filibuster, which Republicans would need 60 votes to overcome" to stop judicial nominees. When the Times says jump, Democrats ask how high.
Republicans should frame their response to Democratic filibusters as a question of freedom. The issue is whether the people should be able to run their own country through the officials they elect.
America’s founders fought a revolution over this principle. Without the rule of law, we have no freedom. Leftists will not be able to defend letting judges rather than voters run the country.
Second, Bush should re-submit the nominations left unapproved during the 107th Congress. That includes the appeals court nominations of Charles Pickering and Priscilla Owen, who were rejected by Patrick Leahy’s Democrat-controlled Judiciary Committee. The Senate should quickly process and confirm these re-submitted nominees.
Third, Republicans should begin warning Americans of the tactics, including filibusters, to come. Public exposure may cause some Democrats to think twice.
Finally, Republicans must work more closely with activists. In an ideal world, appointing judges would not require massive grassroots campaigns, but it does today because judges have become too powerful and leftists want to capture the courts to short-circuit democracy.
Liberty depends on seizing this opportunity.
