More Senate Judiciary Committee Chicanery
April 30, 2004

Senator Charles Schumer and his leftist colleagues on the Senate Judiciary Committee have reached a new low in suggesting that President Bush is being divisive by appointing his political allies to the bench.

Every president is entitled and expected to appoint to the bench those who share his worldview. The nominee's party affiliation is not a legitimate reason for the other party to oppose confirmation unless, perhaps, it will lead him to judicial activism on the bench. But in such cases it's not his party affiliation but his activism that makes him objectionable.

The irony is that conservatives, as a matter of principle, generally reject judicial activism. That is, they believe that judges should interpret rather than make laws. Conservative appointees are far less likely to impose their ideology through judicial "legislation." (Please, liberals, don't trot out Bush v. Gore here.)

It is liberals, like Schumer, who support liberal judicial activists for the bench because they believe the end justifies the means. Indeed, for years the Left was upfront about its intention to use the courts to further its policy agenda, since it was unable to do so through democratic processes.

How else would they have succeeded in federalizing abortion "rights"? And they're trying it again with same-sex marriage, beginning with the Massachusetts Supreme Judicial Court.

Consider the audacity of Schumer lecturing President Bush for appointing to the court conservative Republicans who would probably exercise judicial restraint, when the Schumerites would confirm liberal Democrats who would unapologetically engage in judicial activism.

That's why it's a little hard to take Chuck Schumer castigating President Bush for appointing his White House Counsel Brett Kavanaugh for the U.S. Court of Appeals for the D.C. Circuit. "If President Bush wanted to unite us, would he nominate Brett Kavanaugh?" a pseudo-incredulous Schumer asked, oozing with indignation.

Wrong question, Senator. Judicial appointments are not designed to bring harmony to Washington. Besides, Bush can hardly be accused of divisiveness for doing what all presidents do and are supposed to do. You, Senator, are the one being divisive, by opposing judicial nominations for purely partisan reasons. If it's harmony you want, quit your posturing and honor your constitutional duty to confirm qualified nominees.

There is no requirement that a judicial nominee have a history of nonpartisanship as a condition to serving on the court. In fact, shouldn't we be skeptical about anyone seeking such an appointment who doesn't have strong political convictions?

Almost every judicial nominee worth his salt will have a partisan background or ideological history. But Mr. Kavanaugh's presumed partisanship is more transparent because, unlike many nominees, he is not currently on the bench where his politics would be below the radar.

Surely Schumer doesn't intend to invoke some new rule that only sitting judges (or nonpartisan private sector lawyers) are eligible for judicial appointment and that officials serving in the other two branches of government (or partisan private sector lawyers) need not apply.

What the judiciary committee ought to consider are the appointee's character and qualifications. No one is disputing that Yale Law School graduate Kavanaugh has stellar legal credentials. The problem is that he has been working closely with President Bush, and in particular advising him on other judicial appointments. That, according to his pristine opponents, makes him unacceptably partisan.

These people hold grudges. It became clear in their grilling of Kavanaugh that their primary beef with him was not his own judicial background, but his participation in supporting other Bush judicial nominees that these obstructionists opposed.

The Schumer doctrine appears to be, "we obstructionists will not only usurp the presidential appointment power, we'll disqualify anyone who gets in our way. We'll even blacklist those who helped the president exercise his constitutional prerogative to appoint like-minded judges."

It is difficult to overstate the chutzpah of Charles Schumer and his unmerry band of obstructionists in criticizing President Bush and Brett Kavanaugh for their partisanship when these same senators have turned the entire confirmation process into a rank partisan charade. To them the question is not whether a nominee is or has been partisan, but whether he belongs to the acceptable party.

I could better handle the liberals' refusal to be fair and honorable on judicial appointments if they would admit they treat the judiciary as the third political branch that they intend to fill with liberal activists. But just as with so many other things, as a cynical diversion they accuse the other side of the very sin they're committing. They have no shame.