05 March 2006

Fighting Judicial Nominations

The American Constitution Society blog is noting the latest questionable judicial nomination from President Bush, Michael Wallace, a former aid to Senator Trent Lott, of Mississippi.

One of the commentators, however, while not someone I agree with completely, does best sum up my frustration over Democratic incompetence in the face of miserable judicial nominees:

If we're going to have another round of judge fights, someone should tell the Democrats to make some clear arguments. They're not keeping the Republicans honest and they're making fools of themselves. . . .

Would the Democrats, the "progressives," the "living constitutionalists," the "anti-federalists," or whatever you folks want to call yourselves please get your arguments out there and distinguish yourselves from the lobbyists?

1. Put out a coherent theory of what "advise and consent" entails. Right now the GOP is saying that it means--at a minimum--no filibustering. They also seem to say that it means rubber stamping nominees unless their aptitude or moral integrity is lacking. First in your class at Harvard + no criminal record + demonstrated ability to follow directions = confirmable. It's a little weak, but they have at least some amount of history behind them. Confirmation battles didn't get nasty until very recently, and Democrats thus far have responded with "we want the nominee to pledge certain results, and we'll ask for them in code if that sounds too political." Not good enough. Tell us what else is necessary beyond aptitude and integrity, and explain why you'll stand by that theory even if the Dems take the Presidency and the Senate in '08. Please.

2. Put out a coherent notion of when it's ok to use a filibuster. The filibuster is a value-neutral loser's veto. Evil conservatives used it to hold up civil rights legislation long ago even though the "will of the people" was against them. Now the GOP is saying that evil liberals are doing the same thing to keep intelligent, honest people from serving the country. Again, explain why/when it's appropriate and do it in a way that makes clear that the same principles will apply even if the Dems sweep the political branches in the next election.

3. Explain why "living constitutionalists" aren't legislators in black robes and aren't eroding the rule of law, and do it in a way that the voters will understand. And neither of the following count: (1) "textualists are evil, we're not textualists, therefore we're good"; (2) "we give you the results you like."

The cynical, disaffected moderate conservatives are counting on you. Bush appointing the occasional political hack to the judiciary isn't enough to drive us away from the flock when your flock is so disorganized. I'd rather have GWB calling the shots than PFAW, NARAL and Ted Kennedy. Put out something better than what they're selling, and more people might buy it.

Moderates should be running from people like Alito. They aren't. And, that failure demonstrates Democrats' gross incompetence in mounting an opposition to people like him.

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