In another attempt to blame President Bush and the GOP for the currently woeful state of the judicial nomination process, the Washington Post on Saturday editorialized that the President’s recess appointment of Alabama Attorney General William Pryor to the 11th Circuit Court of Appeals was “More Provocation.”
Last month the Post‘s editorial board declared that President Bush’s decision to recess-appoint Judge Charles Pickering to the 5th Circuit was a “constitutional end run.” (Find my excellent and extremely acute take on that Post editorial here.)
They were wrong then, and they’re wrong again now.
Here are a few excerpts from the editorial with a few bits of reality that the Post missed.
Post: Mr. Pryor will be a judge for now, but he will leave office unless both Mr. Bush and a filibuster-proof Republican Senate majority win election this year. In other words, his prospects of longer-term service on the bench will be bound up with the electoral fate of the Republican Party — exactly the sort of political dependency from which judges are supposed to be insulated.
Reality: His nomination was “bound up with the electoral fate” of the GOP from the beginning. Does the Post actually believe that Al Gore would have nominated him? Would a President Kerry or a President Hillary nominate Mr. Pryor?
And, by the way, it has been the Democrats who have regularly injected politics into the judicial confirmation process. Hasn’t the editorial staff at the Post read those leaked memos from the Judiciary Committee?
Post: [Pryor’s] willingness to accept a recess appointment only underscores his unfitness.
Reality: What?!?! Apparently the Post‘s editorial board is unaware that it is not the nominee’s job to get himself on the bench — his job is to serve well on the bench when he is placed there, whether by senate confirmation or recess appointment.
I also have a question for the Post: Does the unconstitutional filibuster of several of the President’s judicial nominations by senate Democrats underscore their unfitness to govern?
Post: Sometimes the recess appointment has even been used to break a Senate logjam — as when President Clinton placed Roger Gregory on the U.S. Court of Appeals for the 4th Circuit. Mr. Gregory, who was personally uncontroversial but was held up in a larger dispute about seats on the court, was later renominated by Mr. Bush and confirmed by the Senate.
Reality: As I said in response to the Post‘s diatribe on the Pickering appointment, here’s a little history on the Gregory nomination: Roger Gregory, who is black, is from Virginia and was nominated to a seat on the Fourth Circuit long regarded as belonging to North Carolina. Clinton nominated Mr. Gregory knowing the territorial feud that would erupt and that the GOP would get most, if not all, of the negative press over the delay of his nomination to be the first black judge confirmed by the Senate to the Fourth Circuit.
This was typical of Clinton’s injection of politics into the judicial nomination and confirmation process, not to mention the fact that Clinton recess appointed him on December 27, 2000, a mere three-and-a-half weeks before Bush was inaugurated and days before Congress reconvened, meaning that Mr. Gregory’s time on the bench, unless re-nominated, would expire after one year.
The Post, on December 28, 2000, even noted the politics of Gregory’s nomination:
- The appointment effectively lobs a political hand grenade to Senate GOP leaders, who have faced criticism for blocking the nominations of four African Americans, including Gregory, to the Richmond appeals court during Clinton’s term. The Congressional Black Caucus cites studies showing that black judicial nominees have waited significantly longer for confirmation hearings since Republicans took control of Congress in 1995.
White House aides were also eager to put the Senate’s record on black judges in play in the midst of controversy over President-elect Bush’s attorney general nominee, Sen. John D. Ashcroft (R-Mo.), who has been roundly condemned by civil rights groups for torpedoing the nomination of another African American judicial candidate, Missouri Supreme Court Justice Ronnie White.
Clinton has appointed 62 African American judges to the federal bench, but he complained yesterday that Republicans have opposed too many other black nominees, especially in the 4th Circuit. “Time and again, for five years now, I have tried and tried to fill these gaps in justice and equality,” Clinton said, “and time and again, for five years now, the Senate majority has stood in the way.”
Also, if the Post is so concerned about the fact that Pryor “will be a judge for now, but he will leave office unless both Mr. Bush and a filibuster-proof Republican Senate majority win election this year,” why then did they include the following in a December 31, 2000, editorial titled “Avoiding the Senate” praising Clinton’s recess appointment of Mr. Gregory?
- A recess appointment by a lame duck president is a thumb in the Senate’s eye, and normally not the way to fill a vacancy. But it does put a worthy nominee on the court, albeit just for a year. And it is a challenge to the Senate to fix a system that has come to be too readily abused.
Mr. Clinton intends to renominate Mr. Gregory when Congress reconvenes. The Senate will thus have a further opportunity, if it wishes, to act on the nomination in the normal way. Even so, the action is as likely to rile as to shame the members at whom it is mainly, and rightly, aimed. The effect could thus be to exacerbate rather than ease the politicization of the nomination process. But wise senators will take this not as an affront, but as a warning that the system has gone dangerously awry. They themselves risk being scarred if they stay on this ruinous course.
Post: Democrats have upped the ante by filibustering nominees. But recess appointments are the worst possible answer. . . . [T]he answer to obstructionism, which itself threatens judicial independence in the long-term, cannot be tactics that only make that threat immediate.
Reality: What should Bush do, then, other than un-nominate Pryor? It is not the President’s job to simply withdraw his support for one of his nominees simply because a minority of senators and the Washington Post consider that nominee unworthy of confirmation.
Post: Mr. Bush is free to ask voters to elect Republican senators so that the filibuster ceases to be viable against his nominees.
Reality: Doesn’t this statement run contrary to the Post‘s lamentations in the first paragraph of the editorial that Pryor’s “prospects of longer-term service on the bench will be bound up with the electoral fate of the Republican Party — exactly the sort of political dependency from which judges are supposed to be insulated”?
For more First Looks on the Left’s skewed representation of Bill Pryor, see:
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