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End the Fighting Over U.S. Judges! You Go First: Ann Woolner
April 8 (Bloomberg) -- It is tempting to join in the screaming match between Democrats and Republicans over judicial nominations, so important are the stakes and so outrageous are the claims.
It would be easy, indeed, to take sides in the who-started- it argument and declare who has politicized judicial nominations the most.
But it would be wrong. At least, it would be counterproductive to any hope for some sort of reasonable solution.
``Everyone's rhetoric is much too shrill,'' says Susan Low Bloch, a Georgetown University law professor. ``And inaccurate.'' Republicans have misquoted her own writings to score debating points, she says.
The truth is both sides are provoking war. President George W. Bush has again asked the Senate to confirm seven of his choices for federal appellate posts. Democrats previously blocked them by using filibusters, calling the nominees ideological extremists.
Democrats pledge to keep using this undemocratic tactic, while Republicans threaten to change Senate rules to stop filibusters with a so-called ``nuclear option.'' That, Democrats promise, would prompt them to retaliate and use Senate rules to bring the place to a standstill.
``Instead of people stepping in and saying, `Whoa, let's figure out how to deal with this,' the temperature is continuing to rise,'' says Bloch.
Applying Pressure
Outside groups on either side this week stepped up the pressure with letters, petitions, press conferences and advertising campaigns to urge their friends in the Senate not to back down.
And yet, for any solution to occur, rhetoric must cool and pointing fingers retreat.
Majority Leader Bill Frist, a Tennessee Republican, took a stab at it this week. While the Terri Schiavo case sent other Republicans into apoplexy over a judiciary ``run amok,'' as House Majority Leader Tom DeLay put it, Frist actually said, ``We have a fair and independent judiciary.''
Frist, who had been proposing the nuclear option, is now saying he is trying to find a way around it. Sufficient numbers of Republican senators are wary enough that there may not be the majority needed to push the nuclear button.
Continuing Battle
This doesn't mean the war is over. Frist says that whatever compromise emerges, he will demand a simple majority vote on each of Bush's nominees, something the Democrats won't tolerate. With Republicans controlling the Senate by a 55-45 margin, the minority party must rely on filibusters to block a nominee. It takes 60 votes to break a filibuster.
The Republican leadership and the White House want ``total capitulation by the Democrats,'' says Ralph Neas, head of the liberal People for the American Way.
There is a way to break the stalemate. To get there, key players would have to stop accusing the other side of outrageous conduct and consider acknowledging their own excesses.
They won't, of course. But they should.
Democrats could acknowledge that they are insisting on a super-majority that the Constitution never anticipated.
And Republicans can concede that doesn't make filibusters unconstitutional. They might also `fess up to using the tactic themselves in judicial fights, as long ago as 1968 and as recently as 2000.
Democrats could admit that the filibuster isn't exactly democratic.
Clinton Nominees
Republicans used even less democratic means to block dozens of Democratic nominees in committee, they might admit. And then the Democrats could admit to inconsistency in demanding an up-or- down Senate vote on President Bill Clinton's nominees while preventing them with Bush's.
Frist could acknowledge that the 41 senators it takes to keep a filibuster going represent a considerable minority, not to mention millions of Americans, who deserve a voice when they so clearly object to appointing someone to federal court for life.
This is where the president would step in.
Bush could say he fell short in his constitutional duty to get the Senate's advice and consent -- including Democrats -- for approval of his judicial nominees.
Handful of Candidates
The president should acknowledge that Democrats have blocked only a relative handful of appellate candidates whom they view as the most ideologically extreme.
Bush could abandon his mission to remake the judiciary. It throws the balance of power off kilter to put such a clear ideological stamp on the third branch of government when his party already controls the White House and Congress.
This wouldn't be a big concession. Republican presidents nominated 57 percent of the sitting federal judges. Republican nominees are in the majority in 10 of the 13 circuit courts of appeal -- with an 11th evenly divided. There are seven Republican nominees on the nine-member Supreme Court.
Let us hear both sides admit they have helped to break a process crucial to Americans and commit to fixing it.
``There's enough blame to go around for everyone,'' says John Lott Jr., a scholar at the conservative American Enterprise Institute.
The question now is how to reverse the trend. It took 90 days on average to approve a federal appellate judge when the president's father was in the White House, 230 days in Clinton's time and 264 days now, according to Lott's study.
``People on both sides -- and almost simultaneously -- have to say, `We've gotten ourselves into a pickle and we've got to get ourselves out of it,''' says Mark Tushnet, a Georgetown University law professor who has written extensively on the subject.
``You can't expect either side to do it first,'' he said. ``And that's the problem.''
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