"UGLY TRUTH" IS RIGHT :

Judge Not : DON'T GIVE BUSH'S JUDGES A HEARING (Jason Zengerle, 05.09.02, New Republic)

The ugly truth is that the only practical way to stop Bush from stocking the courts with his ideological kin is to stall. Procedurally, that's nothing to be proud of. But it worked for the Republicans in the 1990s. And today it's the only viable strategy Democrats have. [...]

[T]he up-or-down vote solution is no solution at all--unless you're resigned to letting a president, elected with a minority of the popular vote, shift the judiciary substantially to the right.

The fundamental flaw in the up-or-down vote solution is its assumption that voting down judicial nominees is easy. In fact, it's hard to do even once and impossible to do as a matter of course. [...] Defeating Pickering came with a price. First, the Pickering hearings created a poisonous atmosphere on the Hill. The cordial relations between Daschle and Lott, which the two had enjoyed ever since 9/11, became almost instantly bitter as Lott sought revenge by blocking the appointment of a top Daschle aide to a seat on the Federal Communications Commission. Lott also used Senate rules to shut down meetings of three Senate committees, and he tried to block money appropriated to the Judiciary Committee for anti-terrorism oversight.

Even worse for Democrats--particularly those running for reelection this November--was the political fallout. As Georgia Democratic Senator Zell Miller, who supported Pickering, said, his defeat will "make it even more difficult for Democratic candidates to be successful in the South." And sure enough, Republican Senate candidates like John Cornyn in Texas and Lamar Alexander in Tennessee are making judges an issue. ("President Bush was right about Judge Pickering," Alexander declared in one of his campaign's first radio ads.) What's more, Republicans are already threatening that if John Edwards runs for president, they'll use the North Carolina senator's anti-Pickering vote--and his relentless questioning of Pickering during his hearing--to portray him as a liberal tool of left-wing interest groups.

All of which makes it unlikely Senate Democrats will be willing to endure many more Pickeringesque fights in the future (except, of course, when it comes to the Supreme Court). Indeed, were Democrats to grant every Bush nominee a hearing and an up-or-down vote, it seems likely most of the votes would be up: While Democrats have given the green light to 52 of Bush's judicial nominees, Pickering is the only one they have actually voted down.

On the other hand, the political consequences of stalling seem relatively minor. Just consider how brilliantly the strategy worked for the Republicans during the Clinton administration: Of the 24 Clinton appellate court nominees the GOP defeated, not one was ever allowed a public vote. Much as Republicans are doing today, Democrats back then tried to make an issue out of the delays and the vacancy crisis they were causing. "The Republicans are holding up judgeships--causing extraordinary delay of justice in many parts of our country because we don't have judges," Daschle complained in 1997. But when voters went to the polls, they didn't seem to care--returning Republican majorities to the Senate.

It hardly seems necessary to point out (but I'll do so anyway) that the fact that Republicans had no problem shooting down Clinton nominees while the Democrats are terrified of doing the same to Bush nominees suggests that the extremists are likely on their side of the bench, not ours. Voters, wisely, would seem to prefer a conservative judiciary to a liberal-activist one. How shocking of the people to prefer to legislate themselves rather than having judges do it for them. President Bush should beat this issue like a drum. Posted by Orrin Judd at May 9, 2002 2:41 PM