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Jewish World Review April 19, 2005 / 10 Nisan, 5765 The Not So Dirty Dozen By Jonathan Turley
http://www.JewishWorldReview.com |
There were times last week that Senate Majority Leader Bill Frist appeared
to morph into North Korean President Kim Jong Il — threatening the use of
"the nuclear option" while demanding a nonaggression pact from the
Democrats. At issue is the possible Democratic filibuster of as many as 12
Bush administration nominees to the powerful Circuit Courts of Appeals, and
Frist's threat to use a procedural vote to blow that filibuster to kingdom
come.
The decision to nuke or not to nuke has obscured the real issue: Are the
Republican nominees qualified or are they flat-Earth idiots? As a pro-choice
social liberal, I didn't find much reason to like these nominees. However, I
also found little basis for a filibuster in most cases. Indeed, for senators
not eager to trigger mutually assured destruction, there is room for
compromise.
Consider the three Michigan judges nominated for the 6th Circuit Court of
Appeals. There is no compelling reason why Richard A. Griffin, Susan Bieke
Neilson or Henry W. Saad should be barred. Judged well qualified by the
American Bar Assn., their sin appears to be that Republicans failed to
consult on their nominations with Michigan's two Democratic senators.
Then there is David W. McKeague, a well-regarded federal trial judge in
Michigan, also nominated to the 6th Circuit. The only claim Democrats make
against him is that he lacks the proper "temperament" — a term used when a
politician can't find a real reason to oppose a nominee.
Presidential aide Brett M. Kavanaugh served with the independent counsel
during the Monica Lewinsky affair. He's now being attacked as if he stuffed
trunks for the Gambino crime family.
As for Thomas Griffith, another presidential assistant, he was suspended
from practice for failure to pay his bar dues — but that's a distinction
shared by thousands of lawyers. He is also accused of practicing without a
license in Utah, as general counsel of Brigham Young University. However,
five former presidents of the Utah bar have supported his position: "Close
association" with members is sufficient. Last week, four Democrats belatedly
recognized that Griffith is no threat to the Republic and sent his
nomination out of committee to the full Senate.
Two other nominees have been blocked because they are "extremists." William
H. Pryor Jr. is undeniably conservative. However, the test is not whether a
judge has conservative or liberal views but whether he will yield to the
demands of the law despite such views. Pryor has proved that he can do that.
While Alabama attorney general, he vigorously prosecuted former Alabama
Supreme Court Chief Justice Roy Moore for refusing to remove the Ten
Commandments from the courthouse — despite his personal agreement with
Moore's legal view on the issue.
Janice Rogers Brown of the California Supreme Court is equally conservative
— she once called the New Deal a "socialist revolution." But however
inflammatory her remarks outside the courtroom, Brown's legal opinions show
a willingness to vote against conservative views, particularly in criminal
cases, when justice demands it.
Terrence W. Boyle has been blocked over concerns about competence not
conservatism. He has earned a high number of reversals for "plain error" but
the situation isn't extreme enough to justify a filibuster as opposed to a
"no" vote — particularly given his "well qualified" ABA ranking.
For nine of the Republican nominees, Democratic opposition looks as
principled as a drive-by shooting. In fairness, the remaining three nominees
raise legitimate concerns.
Democrats are on good ground in filibustering William J. Haynes II, who
signed a memo that appeared to justify torture of POWs and suggest that the
president could override federal law — an extreme view that preceded abuses
at Abu Ghraib and Guantanamo.
Then there's 9th Circuit nominee William G. Myers III, a former mining
lobbyist who, as an Interior Department official, advocated extreme-right
positions on Native American and environmental issues, often in
contravention of accepted law. Given the centrality of such issues to the
9th Circuit, there is reason to bar his confirmation.
Finally, there is the closer case of Priscilla R. Owen. She has a "well
qualified" ABA rating but she is also indelibly marked by a prior public
rebuke. Atty. Gen. Alberto R. Gonzales, her colleague on the Texas Supreme
Court, said she engaged in "an unconscionable act of judicial activism" in
restricting a minor's access to an abortion. That and other charges of
activism leave Owen damaged goods for confirmation.
There is a dirty little secret behind the not so dirty dozen: Neither the
Republicans nor the Democrats care that much about their records because the
fight over these nominees is just a rehearsal for the upcoming war over
Supreme Court nominees.
Hostilities should cease. Democrats disinclined toward apocalypse should
confirm Brown, Griffith, Griffin, Kavanaugh, McKeague, Neilson, Pryor, Saad
and Boyle. That should shame the president into withdrawing Haynes, Myers
and Owen.
No one will be 100% happy — and in today's lethal political environment
that would be a very good sign
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JWR contributor Jonathan Turley is a law professor at George Washington University. Click here to visit his website. Comment by clicking here. © 2005, Jonathan Turley |
Arnold Ahlert | |||||||||||
