Time to Bench More Judicial Nominees

Elections have consequences, so say pundits and politicians. When George W. Bush promised that if elected President he would appoint “strict-constructionist judges who don’t legislate from the bench,” Americans took him at his word and he has delivered.

Americans know that when judges exceed their authority, especially those on America’s highest court, constitutional rights of life, liberty and property are diminished. Our right to rule as “We the People” is meaningless.

Two of the best consequences of the last presidential and Senate elections were the confirmations of John G. Roberts as chief justice and Samuel A. Alito as associate justice of the U.S. Supreme Court. Americans supported Roberts and Alito because they are superbly qualified and aren’t closet legislators in black-drag.

In addition to their superlative qualifications, Roberts and Alito candidly and clearly expressed their understanding of and respect for the limited role of a judge, and rejected any aspirations to set public policy by intruding on the authority of Congress. When asked whether judges should consider the rulings of foreign courts when interpreting the U.S. Constitution, both men denounced this practice, which is not true of the majority of their “brethren.”

When leftist obstructionists in the Senate tried to ignite a filibuster to stop Alito’s confirmation vote, it fizzled because Majority Leader Bill Frist (R.-Tenn.) had promised he would invoke the “constitutional option.” Frist knew he had the votes to do it, and so did the rest of the Senate.

Another significant lesson to be learned from the confirmations of Roberts and Alito is that “Borking” a nominee has the shelf-life of a Scud missile once a Patriot is counter-launched. The Washington Post on February 2 called it “the full political muscle of the conservative movement—20 years in the making.” Every lie, misrepresentation, scare tactic or character assassination attempted by the well-funded leftist coalition was immediately responded to in print and electronic media by a well-funded, deep and wide coalition of activist organizations from the right to the center, armed with excellent research information provided by staff of the Senate Judiciary Committee and Senate offices.

Even the so-called hot-button issue of abortion failed to deter support for Alito. A poll commissioned by the Susan B. Anthony List, conducted on January 10-12 of 800 likely voters, shows that “70 percent of women and 71 percent of men said Judge Alito should NOT be disqualified from serving on the U.S. Supreme Court if he is pro-life on abortion,” and “66 percent of women and 70 percent of men said a well-qualified nominee should NOT be disqualified from serving on the U.S. Supreme Court if they are pro-life on abortion.” In that same Post article, writers observed: “Heading into the 2006 elections, the last thing they [Senate Democrats] wanted was to look like a party supporting abortion on demand.”

A Zogby Interactive survey, conducted March 10-14 among 30,117 people living in the 48 contiguous states, confirms the same: “Asked whether respondents favored using a filibuster of Supreme Court nominees because of their position on abortion, only 28 percent agreed with the tactic, while 59 percent opposed it. Abortion may become to Democrats what Social Security was to Republicans during the 1970s and 1980s—a “third rail” that caused the GOP continual political trouble. Associated Television News President Brad O’Leary, who commissioned the poll, told PRNewswire on March 22: “There is absolutely no way a presidential or a congressional candidate running for office can grow their base if they insist on championing the abortion issue.”

Election consequences and Americans’ support of Roberts and Alito must not be forgotten when the next vacancy occurs on the Supreme Court. Stealth candidates are not wanted or needed and will not be supported. The difference between the support for Alito and the lack thereof for the nomination of Harriet Miers makes that more than obvious.

Americans expect the confirmation of additional highly qualified judges who respect our constitutional system. This holds true for qualified nominees to lower federal courts who’ve been languishing either in the Senate Judiciary Committee awaiting a hearing or a vote and two who’ve made it out of the committee who need Frist to schedule them for an up-or-down vote in the Senate.

Terry Boyle has been a federal district judge in North Carolina since his 1984 nomination by President Ronald Reagan. President Bush nominated Boyle to fill a judicial emergency on the U.S. Court of Appeals for the 4th Circuit on May 9, 2001. He has been awaiting a Senate vote since Feb. 16, 2005. Boyle’s nomination is stalled because former Sen. John Edwards (D.-N.C.) refused to return any of the blue-slips sent to him. Senators from a nominee’s home state are given a blue slip to return to the Judiciary Committee indicating no opposition to the nominee. Blue slips are a tradition not a rule.

William Myers, nominated to the 9th Circuit on May 15, 2003, another judicial emergency, has been awaiting a vote in the full Senate since March l7, 2005. Environmental groups oppose his nomination.

Brett Kavanaugh, nominated to the U.S. Court of Appeals for the D.C. Circuit on July 25, 2003, is bottled up in the Judiciary Committee. Kavanaugh has clerked for three federal judges, including one on the Supreme Court. He has served as senior associate and associate counsel to the President, and currently is an assistant to the President and staff secretary.

Kavanaugh is opposed on partisan grounds related to his work for Ken Starr as independent counsel in the “Whitewater” investigation of Bill and Hillary Clinton, and for his work as a private attorney for the 2000 Bush election team in Florida. The American Bar Association (ABA) rated Kavanaugh’s nomination “well-qualified.”

Then there’s Judge Henry Saad, nominated to fill a judicial emergency on the 6th Circuit on Nov. 8, 2001, also held in the Judiciary Committee. Saad is a distinguished state court of appeals judge with nearly a decade of experience on the bench. He has sat on the Michigan Court of Appeals since 1994, having been reelected twice with broad bi-partisan support. The ABA rated Saad “qualified” to sit on the U.S. Court of Appeals.

Saad has been left twisting in the wind for more than four years because of the petty partisanship of his home state Senators Debbie Stabenow (D.) and Carl Levin (D.). It’s no doubt why seven Democrats and seven Republicans, who signed a pact on May 23, 2005, to allow votes on specific nominees, left Saad out of the deal, as well as Boyle, Kavanaugh and Myers. The “Gang of 14” pledged not to filibuster others except in “extraordinary circumstances,” e.g., a political grudge.

Reid made a drive-by attack on Saad in a Senate speech on May 12, 2005, implying that there is a problem in Saad’s FBI file, to which Reid is denied access. Reid said: “Henry Saad would have been filibustered anyway. All you need to do is have a member go upstairs and look at his confidential report from the FBI, and I think we would all agree that there is a problem there.” Many saw it as a not-so-veiled racial attack against Saad, an Arab-American, born in Detroit and a life-long resident of Michigan.

Saad has had four FBI background checks as a result of having been nominated four times, twice by both President Bush and President George H.W. Bush. If there were any problems in his FBI file, his nomination wouldn’t have made it from the White House to the Senate.

Reid should forget about filibustering Saad or any other qualified nominee. Elections have consequences. Reid might want to refresh his recollection with Tom Daschle, his predecessor as minority leader. Daschle is home on the range in South Dakota as a consequence of leading obstructionist filibusters against highly qualified nominees.

The President and virtually every Republican senator have said repeatedly, “Every nominee deserves an up-or-down vote.” It’s been repeated by the seven Republican members of the “Gang of 14.”

Americans will remember in November how Senate Democrats and Republicans responded to qualified judicial nominees. Those who refuse to give them an up-or-down vote are quite likely to find themselves on the short end of a ballot count.