Changing the Substantive Standards
In the realm of substantive changes, the first thing we have seen
is an effort to "litmus-test" judges, such as by blackballing
nominees who are pro-life. Several weeks ago, I was pleased to see
my friend Senator Joe Biden admonish groups like NARAL (the
National Abortion and Reproductive Rights Action League) and NOW
(the National Organization for Women) that seek to litmus-test
Unfortunately, others in his caucus have
come out and essentially said that the Judiciary Committee should
institutionalize this practice. For example, after assuming control
last year, the Democrats held two hearings on changing the
standards for confirming judges and, more specifically, on using
political ideology to screen judicial nominees.
There were veiled references to this
practice by some Democrats during the Pickering nomination, such as
that he, in his personal capacity, "has been in one position on
these issues," meaning that he has been pro-life and has otherwise
followed traditional Judeo-Christian principles in his private
life, and that therefore he is unfit.
Next, the Democrats have done an about-face on the importance of
the American Bar Association rating. They criticized the President
when he decided not to give the ABA a preliminary veto over
nominees. They said the ABA rating was the "Gold Standard" by which
to judge nominees. Now that several of the President's nominees,
such as Judge Pickering, have received the ABA's highest rating,
"Well Qualified," this standard no longer matters.
Majority Leader Tom Daschle has recently
minted a new standard: that the nominee must have an "impeccable"
past. (Presumably, this standard is in addition to requiring a
Republican nominee to agree with the Democrats on their laundry
list of ideological litmus tests.) Folks, I've got news for you,
sainthood has never been a requirement for being on the federal
Now, as I have understood our system of justice, we want lower
court nominees to adhere to precedent. The Democrats purport to
want this as well; note their argument against Judge Pickering in
this respect. But after watching some of my Democrat colleagues, I
think it is more precise to say they want nominees who will
selectively follow precedent--the precedent they happen to like:
Roe v. Wade , not Buckley v. Valeo .
example, in one of the "confirmation process" hearings the
Democrats held, one Senator appeared to question whether he could
support any nominee who doesn't support campaign finance reform.
Since most campaign finance reform is unconstitutional, this is
essentially a position not to confirm any nominee who does not
commit, under oath, to disregard Supreme Court precedent and
violate First Amendment rights. This is perverse.
at a confirmation hearing for a district court nominee, another
Senator implied that he might have a hard time supporting a nominee
who agreed with the Supreme Court's decision in the gay scoutmaster
case, Boy Scouts of America v. Dale .
our system of justice, lower court judges don't have the luxury of
picking and choosing which precedents they are going to follow and
which ones they are going to disobey. And it's therefore extremely
unfair to put lower court nominees in an untenable position where
they must commit only to follow precedent selectively, with
Judiciary Committee Democrats doing the selecting.
Changing the Process
Democrats have also sought to change not just the substantive
standards by which we consider nominees, but our process for doing
so. I will mention a couple of examples of this.
There is a Senator who represents a state in my Circuit, the Sixth
Circuit, who is unhappy that two Clinton nominees from his state
were not confirmed by the Republican Senate. He has been holding up
not just all Sixth Circuit nominees from his state, but all Sixth
Circuit nominees, period--even nominees from states he does not
Until now, we have not given a Senator
from one state veto power over the nominees from several other
states. Because it appears the Democrats have thus far followed
this practice with respect to Sixth Circuit nominees, my Circuit is
left with fully one-half of its seats vacant.
Next, the Democrats have started asking some nominees for all their
unpublished opinions. For a judge who has been on the bench for
over a decade, we are talking about a voluminous amount of
material, so regarding this is quite a burden on the nominee.
Furthermore, the value of having these opinions is questionable
because they don't count as precedent.
Republicans never asked this of a nominee
unless they had a specific reason for doing so. They did not go on
fishing expeditions. If we are going to require this of nominees,
this is a change that burdens the nominee, slows down the process,
and encourages "gotcha" politics.
had hoped that this practice was going to be confined to Judge
Pickering, but this unprecedented request is fast becoming
precedent: the Democrats have now asked this of others, such as
Judge Brooks Smith of Pennsylvania, who, like Pickering, has been a
district court judge for over a decade. It's the use of tactics
like these that gives people pause.