Judicial Restraint?

• Author: Ben Keeler
• Filed under: Congress
• Date: Nov 9,2008

One question that Republicans are going to have to find an answer for very quickly is what they are going to do regarding the judicial nominees from the incoming administration. Democrats like our pal The Reverend are already on the case, saying the GOP is being hypocritical for talking up potential filibusters of Obama nominees. President Bush tried to extend an olive branch to the Dems by renominating Clinton's nominee Roger Gregory and putting up another one of his judges, Barrington Parker, for a promotion from district court to appeals court to try and usher in his "new tone" when he first took office. Shortly thereafter, the Democrats stole the Senate (May 2001), and their first actions were to approve Gregory and Parker and hold up the nominations of 9 Bush appointees in committee. That is when things really got bad and it became clear Democrats had no intention of ever cooperating. They were just doing their job, protecting innocent Americans from "right-wing extremists." We were told it was their duty to check the unilateral Republican power.

Almost from the beginning of the Bush Administration, Democrats targeted high-profile nominees and denied them an up or down vote. Do the names Miguel Estrada, Janice Rogers Brown, Charles Pickering, William Pryor, Priscilla Owen, and Brett Kavanaugh ring any bells? I could go on and name more. Democrats, while in the minority, decided that it would be appropriate for them to no longer allow straight up and down votes on the Senate floor. 60 votes would be needed to cut off discussion before there would be a final vote up/down vote, knowing Republicans couldn't reach that threshold if Democrats held together (they did). Once taking the majority back in November 2006, Democrats simply refused to allow hearings on many nominees just like they did from June 2001 through January 2003, thank you very much Senator Leahy. The rate of confirmation has been pathetically slow since January 2007; the Senate has basically been running out the clock on pending Bush nominees since then. Democrats will likely now discover that the Founding Fathers never intended judges or other Presidential appointments to be blocked in this manner or any other - a simple up or down vote is all that is required, and will be outraged the first time Republicans dare try and stop a Democrat judge from getting to the bench. Democrats just don't want conservatives on the bench and don't care how they achieve this goal.

I have always been a big believer of the old slogan that "elections have consequences." Part of me feels that the incoming administration should be able to appoint whomever they want. They won, that is their right. But the other part of me knows that the Democrats will act in the same fashion the next time we are back in the White House. It sounds childish, but the Republicans almost have to do something now. We weren't the ones that started this. Unfortunately, Republicans now find themselves out of power and in position to do something about it, even it is just picking fights with one or two high-profile Democrat nominees. Why can't Republicans act as a "check and balance" to the total control of one party like Democrats used to argue earlier this decade?

As Harry Reid said back on May 23, 2005, the day the "Gang of 14" deal was struck, "of course there will be filibusters in the future." He meant it then in context of saying, "yes, the Democrat minority will still block rising star judges because they are a threat and we will not truly honor this deal." Well, now the shoe is on the other foot. I have fully stated in the past that judicial nominees should only need 50 votes. But Democrats didn't play by the established rules, but I guess now we will be expected to do so. Only fair, right? That is how it typically works in Washington for Republicans. After all, "left-wing extremists" don't exist, only "right-wing extremists."

So as I am a believer of "elections have consequences," I also know that "payback is a bitch." However, Democrats will probably get enough weak Republicans to join their side to block any filibuster and act submissive to their new leaders and overlord. They've been doing it for a few years already.