August 31, 2004

August 31, 2004 | Commentary on

Bad Judgement

I've got a job offer for you. It's at the very top of your profession. Good pay. Lifetime security. Prestige. Power. Influence. Sound good?

But now the bad news. You can't start tomorrow or next week. Maybe not even next year. You might, however, need to leave your current job (or at least stop taking new business) and wait while a group of 100 people decide if you are qualified.

Every public and private utterance you've ever made will be studied. Your religious beliefs may be questioned. You'll probably be asked to take a stand on controversial issues that you may (or may not) face during your tenure.

Oh, and even if a clear majority of the 100 agree you're qualified, parliamentary procedures allow just 41 votes against you to keep you out of office. So -- do you still want the job? Probably not.

Unfortunately, the process described above is exactly the gauntlet that federal judicial nominees face. The only wonder is that qualified people are still willing to accept nominations and subject themselves to such treatment.

During his three and a half years in office, President Bush has nominated 225 individuals to the federal courts. Fifty-one of those were to circuit courts (the next step down from the Supreme Court) and 174 to district courts.

So far, 10 of Bush's circuit court nominees have been filibustered in the Senate. That means that, even though they enjoy the support of more than half the Senate, they're being denied a simple up-or-down vote.

Some nominees have been waiting years. Priscilla Owen of Texas has been on the fence since 2001. Amazingly, she's still waiting. Another nominee, Miguel Estrada, finally withdrew his name last year, after waiting more than two years for a decision. In fact, the White House says more appeals-court nominees have had to wait longer than a year for a confirmation hearing during the Bush presidency than in the last 50 years combined.

This is simply unfair. The Constitution provided us with an independent judiciary so that judges could remain above politics. That's why federal judges get lifetime appointments -- so they'll base their decisions on laws, rather than feel pressure to bend to the prevailing political winds.

But a few senators have hijacked the process. Until this administration, the Senate had never used a filibuster to block the confirmation of a nominee that enjoyed majority support. Today, 10 such nominees are being filibustered.

The solution is simple: The Senate should guarantee up-or-down votes within six months to all nominees who are signed off on by the Judiciary Committee. The Senate should agree to abide by this policy regardless of which party controls it and regardless of which party controls the White House.

Six months should be plenty of time for senators to determine if a nominee is qualified. And it's not fair to ask a nominee to put his or her professional life on hold for longer than six months.

The lack of federal judges is becoming a crisis. The White House says 25 of the president's pending nominees would fill seats that have been designated judicial emergencies. That means cases in those courts are piling up while senators dither for crass political gain.

If the Senate won't agree to move, the president ought to. He should consider making tough recess appointments to fill the empty judgeships. These nominees aren't subject to senate approval, and would typically serve for about a year. Bush could send a message by appointing well-qualified individuals who would interpret the Constitution and laws as written.

Imagine former federal judge Ken Starr or former Solicitor General Ted Olsen on the bench. Whether these men would be interested in long-term appointments or not, they'd probably be willing to serve on a temporary basis to fill an emergency opening. And there are plenty of similar, well-qualified candidates out there.

It's time to end the filibustering, and get our judiciary back to work.

Ed Feulner is president of The Heritage Foundation, a Washington-based public policy research institute.

About the Author

Edwin J. Feulner, Ph.D. Founder, Chairman of the Asian Studies Center, and Chung Ju-yung Fellow
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