Advice & Consent

  After witnessing President Bush's success in enacting parts of his agenda, The New Republic recently described Senate Democrats as being "steamrolled" by the President. But there's one area where Senator Daschle and company, the new majority, are all-too- willing to steamroll the President: appointments to the federal judiciary. Last month, the President sent the Senate the names of eleven nominees to the Courts of Appeal. The submission was followed by an all-too-familiar litany of complaints and objections. From the halls of the academy came the complaint that Bush's nominees were "too conservative." Well, you really have to wonder if celebrity lawyers like Laurence Tribe are really as out of touch as they seem. Did they expect a conservative president (whom they opposed) to appoint people like themselves to the court? One of the principal critics of Bush's nominees, Professor Cass Sunstein of the University of Chicago, once called Clinton appointees Ruth Bader Ginsburg and Stephen Breyer "centrists." Maybe on the planet Pluto or the faculty lounge at Berkeley, but anywhere else they're called liberals. President Clinton had the right to appoint them, and the Senate confirmed them. But even worse than the fevered dreams of academics are the tactics Senate Democrats are adopting to block the President's nominees. Even before assuming control of the Senate, Democrats threatened to block the confirmation of Justice Department officials if Bush's judicial appointees weren't to their liking. Now that they're in control, they can do it by refusing hearings or confirmation votes on disputed judges. They can leave the nominee twisting in the wind and kill the nomination without ever casting a vote on the merits. Senator Chuck Schumer said as much, boasting that the shift in Senate control means only moderates can be confirmed. Something is terribly wrong with the abuse of the confirmation process, which makes Congress' power equal to the President's. Refusing to hold hearings or rejecting nominees because of their philosophy is not what our Founders meant by "advice and consent." As Alexander Hamilton wrote in Federalist Number 76, "the President ought solely to have been authorized to make appointments." Sure, the Senate had an important role to play: to preserve the integrity of the process, not its philosophical balance. Senate confirmation was intended to "prevent the appointment of unfit characters." The Founders were concerned about nepotism, or matters involving moral turpitude, not the ideology or judicial philosophy of the nominees. Hamilton concluded that the president's choice should always be accepted "where there were no special and strong reasons for the refusal." The confirmation mess on Capitol Hill threatens more than the prospects of these nominees; it threatens our constitutional balance. Congress now will try to decide who can be a judge -- which means it is taking over effective control of the judiciary. Christians understand that the balance of power -- rooted in respect for the rule of law -- is vital to our way of life. Without it, freedom, which the Founders called "ordered liberty," doesn't work. We can't allow 214 years of precedent and procedure to be cast aside -- no matter what the liberal activists may say.

06/7/01