Saturday, April 16, 2005

A Very Lame Democrat Defense of Obstructionism on Judicial Appointments; And An Acknowledgement of - Gasp! - Politics in Process

A commenter on my post below named Tendentious Gastropod states:

I don't know why you're so prickly over judicial nominations.

FACT: George Bush has a better record of having his judicial nominees approved than any President in the past twenty-five years. Only ten of 215 nominations have been turned down.

I am so glad this has been brought up. Tendentious has certainly accepted the Democrat talking points. I accidentally deleted my response to Tendentious, so let's take a look at his analysis here.

All 10 of the nominations that the Democrats have blocked are Court of Appeals judges. The Democrats have been very accommodating in confirming district court judges, who sit in trial courts, not appellate courts. That is not surprising; it's no big deal for the opposition party to approve trial court judges.

No, it is over nominations to the United States Courts of Appeals that the Democrats have chosen to fight. Unlike district court decisions, Court of Appeals decisions actually set judicial precedents (often called "making law"). Perhaps more important, talented Court of Appeals judges are one step away from the Supreme Court and can use their appellate seats to qualify themselves for appointment to the Supreme Court.

That's what the Democrats want to prevent-- someone like Miguel Estrada getting appointed to the Big One. Estrada is a very talented lawyer with a superb legal education and pedigree; he's a mainstream conservative thinker, not an extremist, and (horrors!) he is Hispanic. It's just not good politics for the Democrats to allow Bush to groom that kind of bright young conservative for a Supreme Court nomination-- especially when the potential nominee would help Bush cut into one of the ethnic constituencies that Democrats are desperate to hang on to. (Estrada is no longer a nominee, by the way; he gave up after being held up for a year. He is, however, a fine example of the type of nominee that the Democrats want to block.)

The 10 who have been denied are solid nominees and the Democrats have no basis for opposing them other than politics. For an unbiased review of the qualifications of the 10 who have been denied, you can go here .

So let's be honest about this controversy: It's about politics. And that's OK. The political process is what drives judicial appointments in this country. Judges get appointed by the president who wins the election, with the advice and consent of the Senate. It is only Senate current rules that enable the Democrats to filibuster, not the Constitution, the Bible, nor any kind of holy writ.

In other words, the Dems are simply doing what politicians do: using the existing rules to advance or protect their political goals.

The GOP, by the same token, is considering the use of their duly elected majority to change the (non-Constitutional, non-holy) Senate rules so that the Democrats cannot use those rules to stop the Republicans from getting confirmation for nominees the GOP wants on the bench. The Republicans ran on this issue and won. They are now using their increased political power, duly earned in a legal election, to deliver on their campaign promises. This is exactly what the Democrats would do if the parties' positions were reversed.

The Republicans will prevail if they have the spine to do so. And, my Democrat friends, please relax. This is about politics and expression of the popular will. Everyone is playing by the rules. The Constitution is not at stake; the Republic is safe. We can all sleep soundly in our beds at night.


Anonymous Anonymous said...

"Unlike district court judges, Court of Appeals judges actually make law by their decisions."?????????????????????????? I beg to differ, the law was established by the original intent of the framers of the constitution or the politiical body that enacted the statute that the Court is bound to enforce. I am dissapointed that you would want to live in a country where the judiciary "makes law". We should hope that we only have judges appointed to the courts that are capable of limiting themselves to simply interpreting the law rather than making it up as they go. 

Posted by Anonymous

Saturday, April 16, 2005 1:57:00 PM  
Anonymous Anonymous said...

Anonymous: By "make law," I meant that Court of Appeals decisions set judicial precedents. For example, Congress may pass a law that creates exceptions for certain situations. Litigation may arise about what the exceptions mean, how broad they are, etc. In that situation the federal district court (a trial court) can interpret the law and make a decision on the exception issue, but the Court of Appeal can review the district court's decision and overrule it or modify it. Other federal district courts are required to follow the Court of Appeals' decisions on that point. So the Courts of Appeal matter a lot more than district courts. That's why the Democrats fight harder to block Bush's appointments to the Court of Appeals. 

Posted by The Hedgehog

Saturday, April 16, 2005 3:19:00 PM  
Anonymous Anonymous said...

Just visiting from FMH ...

The congress passes laws all the time without all the details filled in, knowing that judges will finish the writing. It leads, on occassion, to some rather cynical opinions and some criticism by judges.

So yes, judges make law all the time. In addition to the more classic "interpret" law and the neoclassic "evolve" law approaches that also apply. 

Posted by Stephen M (Ethesis)

Saturday, April 16, 2005 9:56:00 PM  
Anonymous Anonymous said...

The Hedgehog wrote:
"This is about politics and expression of the popular will."

Expression of the popular will?

Majority rule must be tempered by legal assurances of the rights of minorities, and of individual men and women. When this temperance is weak, or unenforced, or unpopular, then democracy is nothing more than populism. More precisely, nationalist populism.

Posted by Tendentious Gastropod

Sunday, April 17, 2005 9:09:00 AM  
Anonymous Anonymous said...

Tendentious: I think you and I are talking past each other. Our republican form of government is designed to allow for a tempered expression of the popular will. That's where the checks and balances and the bicameral legislature come into play. The popular will regarding judicial appointments is expressed in a muted but ingenious manner, with the people at large voting for a president who appoints the judges, and a senate elected by the states that confirms them.

As for the wisdom of majority rule, tempered though that rule may be, I am sure that these words are familiar to you: ". . . it is not common that the voice of the people desireth anything contrary to that which is right; but it is common for the lesser part of the people to desire that which is not right; therefore this shall ye observe and make it your law — to do your business by the voice of the people." 

Posted by The Hedgehog

Sunday, April 17, 2005 2:42:00 PM  

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