Commentary

Craving Comity … And Losing at Hardball

This article appeared on Nationalreview.com.
With the World Series on tap, one’s thoughts turn naturally to hardball — unless, of course, one is a Senate Republican. I’m tempted to say they’ve done it again — snatched defeat from the jaws of victory — but I’m afraid that this time victory was never in sight. What we have instead is a simple, but classic, Senate Republican blunder. How else to describe their decision, two weeks ago, to press for speedier confirmation of President Bush’s judicial nominees by filibustering, during war, the foreign operations spending bill?

Yes, under the current crisis, that is “must-pass” legislation — step one in the Republican thought process. And yes, credit Senate Republicans for at least taking a stand, something they rarely do. But unless they were prepared to withstand charges of undermining the war effort just to get Republican judges confirmed, it was a losing strategy from the start. And it did lose. On Tuesday afternoon, under pressure from the White House, the filibuster collapsed, leaving the party with egg on its face once again. It’s as if the Gingrich debacle of six years ago left no impression.

Make no mistake, Senate Democrats are playing ideological politics with Bush ‘s judicial nominees. Just look at the numbers. This year there have been 117 vacancies on the federal courts — half the seats on the Sixth Circuit Court of Appeals are now vacant. The president has thus far nominated 60 candidates to fill those vacancies. Yet only 12 of those nominees have been confirmed by the Senate, and two of those were Democratic holdovers from the Clinton years, renominated by President Bush as a gesture to the Democrats. Some of the most qualified candidates have languished since early May; yet the Senate Judiciary Committee, controlled by the Democrats since late May, has refused even to hold hearings on their nominations.

What Democrats have done instead is try to thoroughly politicize the confirmation process. Thus, in June, and again in early September, they held hearings not on the nominations but on whether nominees should have to pass an ideological litmus test, made up by Democrats, before being confirmed. What’s the point of having judges hear cases on abortion, gun control, or affirmative action if you’re going to decide those cases, in effect, during the Senate confirmation process? To listen to the Democrats, judges should decide cases not on the facts and the law but on the basis of their ideology. That’s the death of the rule of law.

Republicans, then, have a genuine gripe — about both the way Democrats view the courts and the way they’re going about the judicial confirmation process. It’s as if Democrats were still fighting Bush v. Gore and the Florida long count, which of course is exactly what they’re doing. But if you’re going to oppose this Democratic lawlessness, you’ve got to be smart about it. You’ve got to pick your fights carefully, then take your case to the public forcefully. When the nation’s at war you don’t block the foreign operations spending bill over the confirmation of Republican judges. You don’t have to be a rocket scientist to see Democrats having a field day with that.

Yet those simple points seem to have gone right by the Republicans. Last week Senate Minority Leader Trent Lott (R-Miss.) confidently crowed that the Democrats eventually would have to make some deal on judicial nominees. “When you’re majority leader, you can huff and puff about how you’re not going to negotiate,” Lott said. “But you have to.” Well, this week it was Lott who blinked.

At a congressional leadership breakfast at the White House on Tuesday, President Bush asked Senate Majority Leader Tom Daschle (D-S.D.) if there was any progress on judicial confirmations. Daschle pointed to the Republican stall, then added, “you need these appropriations bills more than I do.” Either the president hadn’t been briefed by Senate Republicans, or he wasn’t on board. But in either case, the party folded its tent. Perhaps the most revealing line came later from Lott, after rightly criticizing Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) for moving confirmations so slowly: “It’s important not to be arguing even over that.”

Thus, it’s comity, above all, that Senate Republicans seem to crave. If they want to be in the game, they’re going to have to learn hardball. For the moment, however, we’re told that they’ve turned their attention to an energy bill as part of an economic stimulus package. We’re all Keynesians now.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.