Jewish World Review Feb. 6, 2003 / 4 Adar I, 5763

Terry Eastland

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Consumer Reports

Judiciary's 'balance' -- or lack of it -- is our doing | During a meeting last week of the Senate Judiciary Committee, New York Sen. Charles Schumer, a Democrat, interrupted some point or other he was making to catch the eye of another Democrat, Vermont Sen. Patrick Leahy. Mr. Schumer implored, "Chairman, may I ask you a question?"

Since Mr. Leahy no longer answers to that appellation, he said the only thing he could - that he wasn't chairman anymore. Momentarily (but only momentarily) embarrassed, Mr. Schumer redirected his question to the new chairman, Utah Sen. Orrin Hatch.

Mr. Hatch, of course, is a Republican, and he is chairman of the Judiciary Committee because, thanks to the midterm elections, Republicans now hold a two-seat majority in the Senate. The importance of that change is especially evident in the Judiciary Committee, where the 10-to-9 advantage the Democrats enjoyed for most of the last two years now belongs to the Republicans.

Under Mr. Leahy, the committee aggressively challenged President Bush's choices for the federal bench, twice defeating nominees on party-line votes. Not long after Mr. Schumer finished speaking in last week's meeting, the committee, for the first time in the new Congress, voted on a Bush judicial nominee. Again, the vote fell along party lines, 10 to 9, but this time, thanks to the Republican advantage, it was one of approval.

Miguel Estrada, a nominee to the federal appeals court in Washington, D.C., was the beneficiary of that vote. No one doubts that, had Democrats retained control of the Senate, Mr. Estrada would be destined to remain a lawyer in private practice. He was nominated in May 2001. Like many of Mr. Bush's circuit nominees, he waited for a hearing for an unreasonably long time. Fully 16 months passed before he finally did appear before the committee. Afterward, the Democrats refused to schedule a vote. By inaction, Mr. Estrada, widely regarded for his intelligence and competence, was rejected.

The Estrada case confirms once again the importance to judicial appointments of the Senate's composition. Rejections of nominees - whether in committee, by actual vote or inaction, or on the Senate floor - are far less likely when the same party as the president's controls the Senate. And because Republicans now hold the Senate, most if not all of Mr. Bush's circuit nominees (starting with Mr. Estrada) will be confirmed. The fact of Republican control means that the Democrats, in a case where they can't persuade the necessary number of Republicans to join them in opposition, must resort to the filibuster, a politically costly tool that never has been used successfully to defeat a circuit nominee.

Lacking a majority, Senate Democrats now will find it harder to change the confirmation process. Under Mr. Leahy, Judiciary Committee Democrats rejected the traditional view that the Senate should defer to the president's power to nominate and oppose a nominee only if it became obvious that the person wasn't qualified - an approach, by the way, that left room for senators to ask about judicial philosophy. Instead, the Democrats placed the burden of proof on Bush nominees, insisting that they must demonstrate why they should be confirmed.

The Democrats proceeded in that fashion in an effort to influence the president's choices for the circuit courts (and ultimately the Supreme Court). The goal they sought was "balance," meaning, as Mr. Leahy said during last week's meeting, courts neither too far to the left nor too far to the right. In effect, the Democrats wanted Mr. Bush to adhere to a kind of ideological proportionalism in choosing judges, an invitation he declined.

No doubt committee Democrats will continue to ask nominees to prove themselves and to make arguments for "balance." But they will have to recapture the Senate if they are to have the votes in the Judiciary Committee needed for their questions to matter in particular cases.

Moreover, it isn't just the Senate the Democrats need if "balance" in the judiciary is their goal. Far more important is the presidency, for the simple reason that the Constitution reserves exclusively for the president the power to nominate judges. And it is through the exercise of that power over time by different presidents that the courts move in one jurisprudential direction or another, to the state of "balance" the Democrats (currently) say they want - or not.

As the chairman of the Senate Judiciary Committee (Mr. Hatch, not Mr. Leahy!) has put it, "The question of ideology in judicial confirmations is answered by the American people and the Constitution when the president is constitutionally elected."

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2002, Terry Eastland