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Jewish World Review June 6, 2002 / 25 Sivan, 5762

John H. Fund

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It's time for President Bush to stand up to California's senators | President Bush took office promising to restore the "power and legitimate authority of the Oval Office." To that end, the White House has taken controversial steps to claim executive privilege for Enron-related documents from his energy task force, clashed with Rep. Dan Burton, a fellow Republican, in refusing to turn over files on an old FBI scandal in Boston, and ended the American Bar Association's special role in vetting judicial nominees.

But there is one glaring exception to the White House's firm line on protecting its executive branch turf. Last year, it allowed Gerald Parsky, its chief political operative in California, to take effective control of the process of reviewing and recommending nominees for the federal district courts in the largest state. Normally, in the absence of a senator from the president's party, judicial nominees for district courts are vetted by senior House members of the president's party. Instead, Mr. Parsky and the White House crafted a bizarre power-sharing arrangement in California whereby Sens. Barbara Boxer and Dianne Feinstein, both Democrats, would have virtual veto power over district-court nominations.

The deal was to set up four commissions to select judges, one for each of the Golden State's judicial districts. Mr. Parsky and the White House selected three candidates to serve each commission; Sens. Boxer and Feinstein selected another three. Together the six members on each commission would interview prospective candidates and forward their names to the White House, which would pick from those names. Four out of the six commission members would have to agree for any name to be sent to the White House.

The commissions may have seemed a clever way to maneuver around increasingly partisan fights over judicial nominees. But they are constitutionally suspect, and they haven't delivered the political benefits the White House expected. Last month, White House Counsel Alberto Gonzales expressed what the Los Angeles Daily Journal, a newspaper for lawyers, called "strong dissatisfaction" with the judicial advisory committees. "In terms of how quickly the president was able to nominate judges to the bench, California is probably last," he told the American Law Institute. "And I think it was probably because of the commission structure." Mr. Gonzales went on to recognize that the commissions are "an encroachment upon the powers of the presidency, in terms of limiting who he can look to within the state to nominate to the federal bench."

That said, Mr. Gonzales acknowledged that the commission might be here to stay: "We'll see how it works down the road." But he was blunt in saying the only reason it existed is that "You've got two Democratic senators [in California], one [Ms. Feinstein] on the Judiciary Committee."

The argument for the commissions was that they would make Sens. Boxer and Feinstein more cooperative in allowing more important nominations--especially for the Ninth U.S. Circuit Court of Appeals--through. But that didn't happen. Ms. Boxer vowed to filibuster the possible nomination of Rep. Chris Cox, a respected judicial conservative. And she has blocked hearings for Carolyn Kuhl, a Los Angeles lawyer nominated for the Ninth Circuit. For her part, Ms. Feinstein voted to block Judge Charles Pickering, a nominee to another appeals court, from getting a vote by the full Senate. The Judiciary Committee killed the Pickering nomination by a party-line vote even though a majority of the Senate was prepared to confirm him.

When the commissions were created, Mr. Parsky pledged that they would be a way "to take ideology out of the process" and ensure confirmable nominees. But several legal scholars and former judges say the process is suffused with ideology. John Eastman, a professor at Chapman Law School, in Orange, Calif., says he knows of at least two people interviewed by the commissions who were asked for their views on specific issues by Democratic members, including whether they supported the Second Amendment and the Roe v. Wade decision. One candidate was even quizzed about his Catholicism, notwithstanding the Constitution's provision that "no religious test shall ever be required as a qualification to any office or public trust under the United States."

In addition, the White House understood the commissions were supposed to send a minimum of three names to Washington for consideration as district judges. In reality, the commissions have sent a maximum of three names, severely curbing the choices President Bush could make. The commission interviewed more than 25 candidates for one vacancy, but Democrats rejected most of them, including a lawyer who had made the mistake of working with the Bush legal team in Florida during the 2000 election controversy.

Beyond the internal problems of the commissions there are real problems of accountability. The commissions, filled with establishment pillars of the legal community, operate in secret. The White House is never informed of how many votes each nominee received or who voted for or against him. Most candidates are never even voted on, being discarded in an informal process of which no records are kept. A president is politically accountable for the judicial selections he makes. A senator who blocks a nominee in committee or on the floor may have to answer for his actions to voters or constituency groups. But the California commissions make their decisions in the shadows.

The growing judicial vacancy crisis--the Judicial Conference of the United States has declared 35 "judicial emergencies"--has finally convinced the White House that Senate Democrats aren't interested in allowing a vote on any identifiably conservative judicial nominee. California's jury-rigged commissions aren't working, and Senate Democrats see their existence as a sign of weakness. It's time for the president to dissolve them.

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©2001, John H. Fund