Post-Election: The Issue of Judges, Part 2
First, let's look at the appeals courts. I don't think many people understand the importance of the appeals courts. For most federal cases, this is the final venue. The Supreme Court controls their own docket and takes fairly few cases. If they don't want to hear your case after the appeals court has ruled, you're probably stuck. That's why it's important to have a strong bench of appellate judges.
The president is going to run into a problem here (and he's run into it before). The appeals courts are just not high profile in the eyes of the general public. Finding a legal layperson who can name an appeals court judge is a tough task. The Democrats (and Republicans) have used this in the past to block and delay these nominees. It took the Gang of 14 deal and the previous mess to get the public's attention focused on this issue last time around.
History does love to repeat itself. I believe that the Democrats will stall as many nominees as possible. The ones who are obviously conservative will be blocked outright. The Democrats have a shot at getting back the White House in 2008. If the Senate Democrats can delay the president's judges as long as possible, the new Democratic president will get to fill many of those vacancies. With the ideological balance on the appeals courts hanging in balance, the Democrats have every reason to run out the clock.
President Bush currently has some stalled appeals court nominees waiting for confirmation. As painful as it is for me to say, I think that most of them should be withdrawn. I'm especially pained to say this for Michael Wallace, who I think was unfairly railroaded by some very petty people involved with the ABA. However, I think that Peter Keisler is worth fighting for and can win confirmation. He's a Yale Law grad, a Bork clerk, a Kennedy clerk, and worked in both private practice and for the government in high profile jobs. He's incredibly qualified and deserves the full support of the Senate Republicans.
Confirmation of appeals court nominees can be greatly assisted by the Senate Republicans and the president. However, they cannot repeat their behavior from the previous six years. The Senate Republicans specifically have been sorely lacking in their support of judicial nominees. That may change with Frist leaving the leadership (he certainly won't be missed by me). Also, that may change with the new Republican minority being scared to death about what happened Tuesday. Hopefully, it will be a wake up call, especially on this issue.
I strongly agree with one of the points that Ed Whelan made in his recent article on judges...
More importantly, the conservative case against liberal judicial activism has powerful public appeal across a broad swath of the political spectrum.Judges are a winning issue for conservatives. But they can only win on the issue if they actually talk about it. They didn't do that during this election cycle, much to my chagrin. If the new leadership makes judges one of their centerpiece issues, they may be able to push through at least some of the conservative appeals court nominees. They must fight for them though. They have to make the case publicly for these judges and hammer on the issue so much that the nightly news has to talk about it.
If the Republicans are not willing to fight for these conservative nominees, then there is no reason for the president to nominate conservatives. He would be better off nominating squishy judges like Kennedy. They could win confirmation. At the very least, they may get it right half the time. Their confirmations would also prevent a Democratic president in 2008 from filling those vacancies with liberals. If the Republicans aren't willing to fight on this issue, the possibility of a Democratic president is greatly increased.
The next post in this series will discuss the storm of hellfire that we'll see if there is a Supreme Court vacancy. I'll try to figure out who will be nominated and who could be confirmed.