Sunday, April 02, 2006

Confirmation Politics

The Founders and the judiciary
The Washington Times, March 29, 2006, at A22.

Though I like retired Judge Charles Pickering and think he got a raw deal from Senate Democrats, I disagree with a couple of his pronouncements ("Bench repair," Commentary, Sunday).

First, he asserts, "If Democrats think some Republicans won't use the same tactics as those used by Sens. [Edward M.] Kennedy, Charles Schumer and Dick Durbin the next time a Democrat is in the White House, they have to be living in fantasyland."

We have a historical precedent on this issue. President Clinton's nomination of Ruth Bader Ginsburg and Stephen G. Breyer came after the Robert Bork and Clarence Thomas hearings. Republicans could have justified treating the Clinton appointees harshly. Nevertheless, they took the high road, and the former American Civil Liberties Union counsel (Judge Ginsburg) and staff attorney to Mr. Kennedy (Judge Breyer) sailed through the Senate.

Also, though Mr. Pickering is correct to point out that "our Founders never intended the judiciary to be political" — confirmed by the fact that they are given life tenure — the process of selecting federal judges was explicitly made political by having the president nominate the candidates with the "advice and consent" of the Senate.

Finally, if there were not enough votes for cloture of a filibuster, what makes Mr. Pickering think his constitutional amendment has a chance?