Puppets on a String

The United States Senate has been called the greatest deliberative body ever designed, but after the recent refusal of the Senate’s Judiciary Committee to report the nomination of Judge Charles Pickering to the full Senate, a new characterization is probably more apt—that of puppets dancing at the ends of strings controlled by leaders of the radical left, particularly grand master puppeteer Ralph Neas, former head of the Lawyers Committee on Civil Rights and current President of People for the American Way. As Senator Orin Hatch aptly noted, the character assassination of Judge Pickering was "engineered by extreme-left Washington special-interest groups" who had "lynched" Judge Pickering.

Let us put the rejection—or rather non-action—on Judge Pickering in context. There are currently 95 vacancies on the federal courts. Half of the 16 seats on the Sixth Circuit Court of Appeals are vacant. Chief Justice William Rehnquist has called it a judicial "crisis," but he’s not the only one. Back in 1996, when the number of vacancies was roughly 2/3 of what it is now, Senator Patrick Leahy—who now serves as Chairman of the Senate Judiciary Committee—described that much-lower number of vacancies as a judicial emergency. And in 1997, he declared: "Those who delay or prevent the filling of [judicial] vacancies must understand that they are delaying or preventing the administration of justice."

Under our Constitution, the primary responsibility for filling judicial vacancy lies with the President, of course, and President Bush acted swiftly to nominate individuals that the American Bar Association has almost uniformly rated as qualified or well qualified. Indeed, among President Bush’s nominees are some of the most highly-regarded Supreme Court practitioners and legal scholars in the country.

But the Constitution does not assign the entire power for judicial nominations to the President. Article II also requires "the advice and consent of the Senate," a requirement that our nation’s founders adopted in order to serve as a check lest the President succumb to pressures of nepotism. By refusing even to schedule hearings for most of the President’s Circuit Court nominees, the Senate has abused that power, relegating some of the most well-qualified lawyers and jurists in the country to nomination limbo.

Miguel Estrada—nominated back in May 2001, almost a full year ago—is a former federal prosecutor who has argued 15 cases before the U.S. Supreme Court. He would be the first Hispanic judge ever to serve on the prestigious Court of Appeals for the D.C. Circuit, yet he has not even had a hearing in the ten months since his nomination. John Roberts, one of the nation’s premier appellate lawyers, with 36 Supreme Court arguments under his belt, has also been languishing since May without a hearing on his nomination to the D.C. Circuit. Michael McConnell, widely regarded by conservatives and liberals alike as one of the foremost constitutional law scholars in the land, has also watched his nomination to the 10th Circuit Court of Appeals held in abeyance for more than 10 months. Same with Lavenski Smith, who would be the first African-American from Arkansas ever to sit on the Eighth Circuit Court of Appeals. And Priscilla Owen of the Texas Supreme Court; Deborah Cook of the Ohio Supreme Court; Julia Gibbons of the U.S. District Court in Tennessee; Susan Nielson of the Michigan Circuit Court; and Carolyn Kuhl of the California Superior Court—five women who have distinguished themselves as district court judges yet whose nominations for the Circuit Courts have gone a combined total of 38 months without hearings before the Senate Judiciary Committee. Only 7 of the President’s 29 nominees to the Courts of Appeals have been confirmed; twenty have not even had a hearing.

This is not deliberation, but a modern form of the old black-ball technique. And the people with the ultimate veto are not even elected members of the Senate, but their interest-group allies who are really calling the shots.

No one disputes that most or all of these individuals are well qualified to serve on the federal appellate bench, nor even that they would be confirmed if the full Senate was given the opportunity to vote on the nominations. For those who need to be reminded, it is the full Senate, not an individual committee, who has the constitutional responsibility to give its advice and consent on judicial nominations. Senator Joseph Biden made that point in 1997, and the Republican Senate responded by reporting out President Clinton’s nominees for a full Senate vote; but Senator Biden is singing a different tune now.

As egregious as these delays are, though, they are not the most troubling aspect of the strategy being employed by the Senate Judiciary Committee and, more significantly, by its behind-the-scenes puppeteers. The delays seem calculated to allow the dirt-mongers of American politics time to find anything in a nominee’s lengthy career that might be distorted to demonstrate that the nominee is sufficiently "outside the mainstream" to warrant rejection. In some ways, the lengthy delays are therefore proof of the high caliber of individuals who have been nominated by the President—ten months and counting and still not enough dirt to derail most of the President’s nominees. But that’s why the Charles Pickering battle is so significant. Real dirt no longer matters. Made-up dirt will do just as well; in fact, it is better, because it sends a signal to well-qualified individuals that no matter how pristine their reputation, their records will be distorted by the high priests of the reigning orthodoxy. And it sends a signal to the President himself—"give us nominees who will use the bench to make law rather than interpret it, mandating policies that no democratically-elected legislature would ever dare enact, or we will prevent you from fulfilling your constitutional obligation at every turn."

That threatens not just the dozens of nominees awaiting their chance to serve, but the very nature of our democratic republic. It is time for Senators to start acting like Senators, and cut those puppet strings before then entangle us all in a knotty mess from which we may never be able to extricate ourselves.

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.

"First Principles" is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2001 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.