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Jewish World Review Nov. 18, 2002 / 13 Kislev, 5763

Nat Hentoff

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Breaking the judiciary logjam | On Oct. 30, George W. Bush televised a series of proposals to end the fiercely politicized Senate Judiciary Committee confirmation process for federal judges. Because of ideological warfare by both parties, we now have what the American Bar Association accurately calls an emergency situation in the federal courts.

With many judicial vacancies, those who suffer are litigants around the country as their cases are delayed. This happens no matter which political party controls the Senate Judiciary Committee and keeps slowing the process. The one proposal by the president that is crucial is: "I call on the full Senate to commit to an up or down floor vote on each nominee no later than 180 days after the nomination is submitted."

The 180-day provision is debatable, but requiring all the senators to vote on a nomination -- regardless of whether the Senate Judiciary Committee has approved it -- was called for by Alexander Hamilton in Federalist Papers Nos. 76 and 77: the president is "bound to submit the propriety of his choice to ... an entire branch of the legislature." The Constitution designates the Senate as that branch.

Furthermore, as Sen. Arlen Specter (R-Pa.), a Judiciary Committee member, makes clear: "Neither the text of the Constitution nor any contemporaneous or subsequent history says anything about the ability of one senator or one committee to defeat a judicial nomination by the president."

Bush made a big mistake by issuing his proposal on the eve of the elections, thereby giving his critics an opening to scorn it as a political ploy, which it was. If he is serious about actually restoring the Constitution to the battered confirmation process (now that the Republicans control the committee), the president should bring the issue up again on prime time television, focusing only on the requirement that the entire Senate eventually vote on the judicial nominees. If he does that, then the citizenry can understand the cynical power game that has been played so long on the Judiciary Committee by both parties (Republican majorities have killed nominations by Democratic presidents).

In his book entitled "G-d Save This Honorable Court: How the Choice of Justices Shapes Our History" , professor Laurence H. Tribe -- whose casebook on constitutional law is often referred to by the Supreme Court -- wrote that "what matters most (in the process) is that 100 senators of diverse backgrounds and philosophies" vote on the judicial nominees of any president.

By the way, do you think that the Constitution's framers would have approved of the current "blue slip" rule on the Senate Judiciary Committee, which allows a single senator to kill a nomination made by a president? Or imagine James Madison watching the recent nomination of Miguel Estrada for the District of Columbia Court of Appeals. Sen. Charles Schumer (D-N.Y.) pounded Estrada with accusations by two anonymous sources who could not be cross-examined. Hard to justify, when you consider the basis of our entire system of justice is "due process" -- fairness.

The very same Schumer, the Democrat's chief ideology enforcer, is quoted approvingly in a clueless Newsday editorial as saying that, "The problem isn't the process, it's with whom he (Bush) is nominating." But it is Schumer who exemplifies the problem with the senators on both sides of the aisle that is contorting the process. Through the years, members of the committee have been pressing nominees to pledge they would vote, if confirmed, just as these ideological senators would vote if they were judges.

The Democratic party's rigidity was recently shown before the midterm elections, during a hearing on Estrada's nomination when he was hit with charges by those anonymous sources: Not even civil libertarians Leahy and Russell Feingold (D-Wis.) protested.

Ralph Neas, president of the often-valuable People for the American Way, is a critic of Bush's proposals -- including sending each nominee to the Senate floor after the Judiciary Committee votes. American Way goes hunting for judicial nominees who don't fit its ideological passions.

Neas, knowing my position on the need for a floor vote, asked me in a note: "Are you sure it is a good idea to jettison two centuries of Senate history and precedents?"

For many years, Senate precedents prevented women from voting and denied equal protection of the laws to black Americans. The pettifogging on the Senate Judiciary Committee is a precedent well worth jettisoning so that nominees can get judicious hearings. A clear statement to this effect -- supporting President Bush's proposal -- by the new Judiciary Committee chairman, Orrin Hatch (R-Utah), would be most valuable for the future of the judiciary, and therefore, for the rest of us.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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