On Recycling Defeated Judicial Nominees

Yesterday we posted part of a press release from People for American Way sharply rebuking the Bush Administration for renominating Judges who failed to survive the confirmation process--particularly, Priscilla Owens and Charles Pickering who were defeated in Committee. We agree with Neas.

Nan Aron of Alliance for Justice astutely wrote the following when she was guest-blogging for Eric Alterman's Altercation a few months ago.
In light of the election results, there has been some speculation that the president will renominate those already defeated by the Committee. This would be an insult to the institution of the Senate, which has already performed its constitutional duty. The president has insisted he wants to work in a bipartisan fashion for the good of the country. The morning after the election, President Bush continued to reinforce his “uniter” message by saying, “I’ve talked to leaders of both parties and assured them I want to work with them.” We take him at his word; however, we will most certainly watch his deeds. To force the Senate to reconsider these nominees after it has done its work would be an ultimate politicization of the process.
We also think the New York Times proposed a good plan of action for the Democrats, a portion of which bears repeating:
Senate Democrats must insist on two things going forward: consultation and consensus. Senator Patrick Leahy, who will be the ranking minority member of the Judiciary Committee, should ask to meet with the administration in advance to head off unacceptable candidates before they are nominated. Consultation of this kind occurred in the Clinton years, and it should be the norm for judicial selections, no matter which party holds the White House.

Senate Democrats should also make it clear that they will not accept extremist nominees. They must draw a line in the sand and say that those whose politics cross it will not be confirmed.

Democrats in the Senate no longer control the Judiciary Committee, which has until now been screening out the worst nominees, and cannot win party-line votes. But they should reach out to moderate Republican senators and build a mainstream coalition. And when a judicial nominee is unacceptable, they should not be afraid to mount a filibuster, which Republicans would need 60 votes to overcome.

Rumors have been swirling around Washington that there could be one or more Supreme Court vacancies in the next few months, making the stakes as high as can be. With the White House representing the far right in the nominating process, it remains up to the Senate — even in its new configuration — to represent the rest of the country.
We maintain, as we have said before, that the President does not have a right to flood the judiciary with far right-wing ideologists, particularly if there is any indication that they will become judicial activists--deciding cases based upon their conservative views rather than the law. What's so bad about a conservative judiciary? As we explained here, in response to a Fox News column Instapundit wrote on the subject:
We cannot support a right-wing, conservative judiciary. They are more of a menace than a positive force. Anyone concerned with criminal justice issues cannot realistically view a conservative court in a positive light, even though, in addition to the issues set out by Glenn, we appreciate conservative judges' support of privacy rights, opposition to laws providing increased punishment for hate crimes, and views on matters pertaining to asset forfeiture.

Looking at the big picture, a conservative court will not issue an opinion requiring: the repeal of mandatory minimum sentences for drug offenses; a moratorium on the death penalty; abolition of the death penalty; the elimination of racial disparities in sentencing; fair procedures (as exist in many states) regarding discovery, guilty plea colloquy, jury selection, and judicial disqualification; grand jury reform; adequate funding for indigent defense; restoration of full habeas corpus rights that were taken away by the "The Anti-Terrorism and Effective Death Penalty Act of 1996"; meaningful checks and balances and oversight of law enforcement powers through increased scrutiny of requests for even more powers and resources; fair treatment of juveniles as juveniles, not adults; fair treatment of immigrants and restoration of discretionary relief from deportation.

Conservative judges only support some constitutional rights for some people. By and large they do not support constitutional rights for the citizen accused or convicted of crime. Thus, while Prof. Reynolds is correct that we should appreciate a conservative judiciary for the positive effect it will have on issues involving intrusions into privacy and federalism, we think any such benefit is far outweighed by the detrimental effect it will have on our principles of justice and on what until now has been the best and fairest criminal justice system in the world

Our advice to the Democrats, therefore, is different from that of Professor Reynolds and Mr. Benning.Instead of capitulate and embrace, and hold the conservative jurists to their promise of more great rulings restricting Congress and the federal courts, we advise the democrats to filibuster, early, loud and often. The only way to prevent these right wing jurists from imposing their narrow and unjust views on the rest of us is to keep them from attaining the bench in the first place. Take note of political action alerts, write your elected officials and tell them to oppose the nomination, and remember, grass roots efforts can be successful. A Senator can serve his or her constitutents only if he or she knows their position on issues. By writing to them, you become heard, and your opinion counts. We neither need nor want another Scalia, Kennedy or Clarence Thomas. Do you?

< Blogging Tribute | Feingold to Introduce Anti-Death Penalty Legislation >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort: