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A Fair and Balanced Judiciary

From the February 5, 2003 Dallas Morning News: To the consternation of Senate Democrats, Miguel Estrada--and the rest of the Bush judges--is coming.

10:20 AM, Feb 6, 2003 • By TERRY EASTLAND
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THAT SENATE DEMOCRATS are mulling whether to filibuster the nomination of Miguel Estrada is a telling measure of their reduced power to block Bush judges. Thanks to the midterm elections, Republicans now hold a two-seat majority in the Senate. And in the Judiciary Committee the 10-to-9 advantage the Democrats enjoyed for most of the last two years now belongs to the Republicans.

Under the Democrats, the committee aggressively challenged Bush's choices for the federal bench, twice defeating nominees on party-line votes. Last week, for the first time in the new Congress, the committee voted on a judicial nominee--Estrada, who's been designated for the federal appeals court in Washington. Again, the vote fell along party lines, 10 to 9, but this time, thanks to the Republican advantage, it was one of approval.

No one doubts that, had Democrats retained control of the Senate, Estrada would be destined to remain a lawyer in private practice. He was nominated in May 2001. Like many of 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, Estrada, widely regarded for his intelligence and competence, was rejected.

The Estrada case confirms 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 Bush's circuit nominees (starting with 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 supermajoritarian instrument that requires 60 votes to bring to an end. Some Democrats are now pushing for a filibuster against Estrada. But the filibuster is a politically costly tool that never has been used successfully to defeat a circuit nominee. It's hard to image its perpetual use to block Bush judges.

Because they are no longer in the majority, Senate Democrats will find it harder to achieve the objective they undertook in the previous Congress--that of changing the confirmation process. Under Chairman Patrick 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 obvious effort to influence the president's choices for the circuit courts (and ultimately the Supreme Court). They sought "balance," meaning, as Leahy reiterated during last week's meeting, courts neither too far to the left nor too far to the right. In effect, the Democrats wanted 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 to achieve "balance" in the judiciary. 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 new chairman of the Senate Judiciary Committee--Republican Orrin Hatch--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."

Terry Eastland is publisher of The Weekly Standard.