Clicking on banner ads keeps JWR alive
Jewish World Review June 6, 2002 / 25 Sivan, 5762

John H. Fund

Fund
JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
David Limbaugh
Michelle Malkin
Chris Matthews
Michael Medved
MUGGER
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

It's time for President Bush to stand up to California's senators


http://www.NewsAndOpinion.com | President Bush took office promising to restore the "power and legitimate authority of the Oval Office." To that end, the White House has taken controversial steps to claim executive privilege for Enron-related documents from his energy task force, clashed with Rep. Dan Burton, a fellow Republican, in refusing to turn over files on an old FBI scandal in Boston, and ended the American Bar Association's special role in vetting judicial nominees.

But there is one glaring exception to the White House's firm line on protecting its executive branch turf. Last year, it allowed Gerald Parsky, its chief political operative in California, to take effective control of the process of reviewing and recommending nominees for the federal district courts in the largest state. Normally, in the absence of a senator from the president's party, judicial nominees for district courts are vetted by senior House members of the president's party. Instead, Mr. Parsky and the White House crafted a bizarre power-sharing arrangement in California whereby Sens. Barbara Boxer and Dianne Feinstein, both Democrats, would have virtual veto power over district-court nominations.

The deal was to set up four commissions to select judges, one for each of the Golden State's judicial districts. Mr. Parsky and the White House selected three candidates to serve each commission; Sens. Boxer and Feinstein selected another three. Together the six members on each commission would interview prospective candidates and forward their names to the White House, which would pick from those names. Four out of the six commission members would have to agree for any name to be sent to the White House.

The commissions may have seemed a clever way to maneuver around increasingly partisan fights over judicial nominees. But they are constitutionally suspect, and they haven't delivered the political benefits the White House expected. Last month, White House Counsel Alberto Gonzales expressed what the Los Angeles Daily Journal, a newspaper for lawyers, called "strong dissatisfaction" with the judicial advisory committees. "In terms of how quickly the president was able to nominate judges to the bench, California is probably last," he told the American Law Institute. "And I think it was probably because of the commission structure." Mr. Gonzales went on to recognize that the commissions are "an encroachment upon the powers of the presidency, in terms of limiting who he can look to within the state to nominate to the federal bench."

That said, Mr. Gonzales acknowledged that the commission might be here to stay: "We'll see how it works down the road." But he was blunt in saying the only reason it existed is that "You've got two Democratic senators [in California], one [Ms. Feinstein] on the Judiciary Committee."

The argument for the commissions was that they would make Sens. Boxer and Feinstein more cooperative in allowing more important nominations--especially for the Ninth U.S. Circuit Court of Appeals--through. But that didn't happen. Ms. Boxer vowed to filibuster the possible nomination of Rep. Chris Cox, a respected judicial conservative. And she has blocked hearings for Carolyn Kuhl, a Los Angeles lawyer nominated for the Ninth Circuit. For her part, Ms. Feinstein voted to block Judge Charles Pickering, a nominee to another appeals court, from getting a vote by the full Senate. The Judiciary Committee killed the Pickering nomination by a party-line vote even though a majority of the Senate was prepared to confirm him.

When the commissions were created, Mr. Parsky pledged that they would be a way "to take ideology out of the process" and ensure confirmable nominees. But several legal scholars and former judges say the process is suffused with ideology. John Eastman, a professor at Chapman Law School, in Orange, Calif., says he knows of at least two people interviewed by the commissions who were asked for their views on specific issues by Democratic members, including whether they supported the Second Amendment and the Roe v. Wade decision. One candidate was even quizzed about his Catholicism, notwithstanding the Constitution's provision that "no religious test shall ever be required as a qualification to any office or public trust under the United States."

In addition, the White House understood the commissions were supposed to send a minimum of three names to Washington for consideration as district judges. In reality, the commissions have sent a maximum of three names, severely curbing the choices President Bush could make. The commission interviewed more than 25 candidates for one vacancy, but Democrats rejected most of them, including a lawyer who had made the mistake of working with the Bush legal team in Florida during the 2000 election controversy.

Beyond the internal problems of the commissions there are real problems of accountability. The commissions, filled with establishment pillars of the legal community, operate in secret. The White House is never informed of how many votes each nominee received or who voted for or against him. Most candidates are never even voted on, being discarded in an informal process of which no records are kept. A president is politically accountable for the judicial selections he makes. A senator who blocks a nominee in committee or on the floor may have to answer for his actions to voters or constituency groups. But the California commissions make their decisions in the shadows.

The growing judicial vacancy crisis--the Judicial Conference of the United States has declared 35 "judicial emergencies"--has finally convinced the White House that Senate Democrats aren't interested in allowing a vote on any identifiably conservative judicial nominee. California's jury-rigged commissions aren't working, and Senate Democrats see their existence as a sign of weakness. It's time for the president to dissolve them.

Enjoy this writer's work? Why not sign-up for the daily JWR update. It's free. Just click here.


Comment on JWR contributor John H. Fund's column by clicking here.

Up

05/16/02: A Court Intrigue: Procedural funny business in a racial-preference case
05/14/02: Thin moral ice: New revelations from a skater's Stasi files recall an oppressive era
05/09/02: Newark, Zimbabwe!?
05/02/02: Will Terror Leave Us No Choice? Teachers unions try to use Sept. 11 as an excuse for bad schools
04/23/02: The New Nixon? Al Gore plots his comeback
04/16/02: 'I, Uh, I Have No Comment': A union plays dirty in opposing an antitax initiative
03/31/02: Don't Just Do Something, Stand There!: Filibusters can help the Senate GOP get things done
03/14/02: Red-Light District: It's time to draw the line on gerrymandering
02/21/02: Slippery Slope: Can Dick Riordan beat California's Democratic governor?
02/14/02: Reform School: The Shays-Meehan incumbency protection act
02/07/02: Arizona Highway Robbery: Politicians make a grab for campaign cash
01/31/02: Disfranchise Lassie: Even dogs can register to vote. We need election reform with teeth
01/17/02: Dr. King's Greedy Relations: Cashing in on a national hero's legacy
01/10/02: Oil of Vitriol
01/04/02: The little engine that couldn't--and the senators who don't want it to
12/24/01: E-mail and low-cost computers could be conduits for a learning revolution
12/13/01: How Gore could have really won
12/07/01: Let our students keep their cell phones
12/04/01: Why the White House gave the RNC chairman the boot
11/12/01: A Winsome Politician: She won an election in a majority-black district--and she's a Republican
11/01/01: Bush Avoids Politics at His Peril
10/30/01: Cocked Pit: Armed pilots would mean polite skies
10/24/01: Chicken Pox: Hardly anyone has anthrax, but almost everyone has anthrax anxiety
10/11/01: Will Rush Hear Again? New technology may make it possible
10/04/01: Three Kinds of pols
08/24/01: Lauch Out: Who'll replace Jesse Helms?
08/08/01: Tome Alone: Clinton's book will probably end up on the remainder table
08/03/01: Of grubbing and grabbing: Corporation$ and local government$ perfect "public use"
07/31/01: Affairs of State: The Condit case isn't just about adultery. It's about public trust and national security
07/14/01: The First Amendment survives, and everyone has someone to blame for the failure of campaign reform
07/12/01: He's Still Bread: Despite what you've heard, Gary Condit isn't toast --- yet
07/12/01: Passing Lane: Left-wing attacks help boost John Stossel's and Brit Hume's audiences
06/25/01: Man vs. Machine: New Jersey's GOP establishment is doing everything it can to stop Bret Schundler
06/15/01: A Schundler Surprise? Don't count out "the Jack Kemp of New Jersey"
06/06/01: Memo to conservatives: Ignore McCain and maybe he'll go away
05/29/01: Integrity in Politics? Hardly. Jim Jeffords is no Wayne Morse
05/22/01: Davis' answer to California's energy crisis? Hire a couple of Clinton-Gore hatchet men
05/07/01: Prematurely declaring a winner wasn't the networks' worst sin in Florida
04/23/01: How to fix the electoral process --- REALLY!
04/11/01: A conservative hero may mount a California comeback
03/30/01: Can the GOP capture the nation's most closely balanced district?
03/09/01: Terminated
03/06/01: Leave well enough alone
02/22/01: Forgetting our heroes
02/15/01: In 1978 Clinton got a close look at the dangers of selling forgiveness
02/12/01: Clinton owes the country an explanation --- and an appology
02/06/01: How Ronald Reagan changed America
01/16/01: Why block Ashcroft? To demoralize the GOP's most loyal voters
01/15/01: Remembering John Schmitz, a cheerful extremist
12/29/00: Why are all Dems libs pickin' on me?
Dubya's 48% mandate is different than Ford's
12/13/00: Gore would have lost any recount that passed constitutional muster
11/13/00: The People Have Spoken: Will Gore listen?
10/25/00: She's really a Dodger
09/28/00: Locking up domestic oil?
09/25/00: Hillary gives new meaning to a "woman with a past"
09/21/00: Ignore the Polls. The Campaign Isn't Over Yet

©2001, John H. Fund