If It Ain't Broke ...
by Clay Risen

President Bush's May 9 speech in the Rose Garden, in which he criticized Senate Democrats for blocking two of his appeals court nominees, is a case study in opportunistic civility. "Today, we are facing a crisis in the Senate, and therefore a crisis in our judiciary," the president said. Taking the high road, he called on the Senate to put aside its petty differences and accept his plan for a revamped nomination process, in which Congress would vote up or down 180 days after a nominee is submitted, filibusters be damned. "I believe a fresh start is possible," Bush said. In turn, the Senate Republican leadership has put forth its own, similar plan. "The need to reform is obvious and it is now urgent," said Majority Leader Bill Frist on the Senate floor.

First, some perspective. While it's true that the Judicial Conference of the United States has labeled a number of judiciary vacancies as "emergencies," federal vacancies overall are at their lowest point in 13 years — hardly a crisis. And this despite the aggressively obstructionist Republican Senate of the Clinton years: Between 1995 and 2000, the GOP blocked 35 percent of Clinton's appellate nominees. If there is a vacancy crisis at all, it's of the Republicans' making. In contrast, since the Democrats took over the Senate in July 2001, the Senate has confirmed 120 nominees and filibustered only two.

And those two — Miguel Estrada and Priscilla Owen — have been singled out for very specific reasons. In Estrada's case, his complete lack of judicial experience and unwillingness to answer questions about his political beliefs raise the possibility that he is a "stealth candidate," a nominee who seems innocuous only to unveil his ideologies once he assumes the bench. Owen, on the other hand, has a long history of extremely conservative rulings and staunch opposition to abortion rights. What's more, each nominee carries a strategic value beyond his or her individual political orientations: Estrada, nominated to the evenly split D.C. Circuit Court, would tip the balance in the Republicans' favor; Owen, along with another nominee waiting in the wings, Charles Pickering, would reinforce the already staunchly conservative Fifth Circuit Court, which oversees Louisiana, Mississippi and Texas, making sure that it doesn't balance out for a long time to come.

Bush and Co. want the public to believe that Senate Democrats are in violation of the president's constitutional right to place whomever he wants on the bench; in the Rose Garden speech, Bush asserted his "constitutional responsibility to nominate excellent judges." But in our system of checks and balances, there's a tit for every tat. Not only does the Constitution empower the Senate to give its "advice and consent" on nominations, but a robust tradition has emerged in which the president submits moderate nominees and the Senate in turn more or less rubber stamps them. So, by design, when the president nominates unpalatable judges, filibusters and other obstructions are acceptable ways for the minority party to tell him he's gone too far. It's a system that has served the country well, keeping the federal judiciary by and large a moderate, apolitical body, just as the Constitution intends. The system is far from broken — indeed, it's working perfectly.

But this may be cold comfort in the months ahead, as two more controversial nominees — Carolyn Kuhl and Pickering — come up for Senate confirmation; the Democrats have threatened to filibuster both. What's more, the plan is just the first step in an aggressive GOP strategy to override the Democrats' opposition. As the New York Times noted last week, because procedural changes require a two-thirds majority, the reform plan is dead in the water; instead, the Republicans will likely use its failure as an excuse to "go nuclear," as Orrin Hatch has already threatened — including filing suit and introducing more extreme reform legislation. Add to that the near-term possibility of another Supreme Court nomination, and it's clear that the Democrats aren't simply fighting an uphill battle — they're just leaving base camp.

Democrats need to fight Bush's nominees, but if they want to win the judiciary war, they desperately need to expand their arsenal. Simply threatening filibusters at the end of each nomination process opens them up to charges of obstructionism, and pointing to the numbers — as Tom Daschle did in a speech, complete with visual aids, a few weeks ago — will only get them so far.

Democrats need to go on the offensive, explaining to the public not only why Estrada, Owen, Kuhl and Pickering are worth opposing, but why Bush's plan to pack the appellate courts can't be allowed to stand. And they need to reach out to Republican moderates. With the GOP fracturing over tax cuts, now would be a good time to woo Lincoln Chafee or George Voinovich — not because of their links within the party (which at this point aren't terribly strong), but because even one Republican senator coming out against one nominee is more powerful than 20 Senate-floor speeches upholding a filibuster. Peace and comity once defined the nomination process; now extremism and viciousness are the rule. Republicans would like us to believe Tom Daschle is at fault here. To win the judiciary war and bring civility back to the nomination process, Senate Democrats need to prove that the opposite is the case.

E-mail Clay Risen at risenc@yahoo.com.