Wednesday, May 25, 2005
New York Times and the Deal
The New York Times opined regarding the recent deal to end debate on President Bush's appellate court nominees without the need for the "Constitutional Option":
At bottom, the agreement is about postponing any ultimate showdown until
the president is called on to nominate a Supreme Court justice. That seems
sensible. The Supreme Court is what everyone has had in mind during all this
jockeying over procedure. Although the appeals courts have an increasing role in
the judicial system, a Supreme Court nomination is the only time that most
Americans really focus on confirmation issues.
The Times correctly concludes that the compromise only postpones any ultimate showdown until a Supreme Court nominee is named. At that point, Democrats will come under extreme pressure from the liberal interest groups to oppose any nominee that appears at all likely to question Roe v. Wade.
Whether this compromise was sensible or not remains to be seen. Certainly, more Americans will focus on the debate of a Supreme Court nominee rather than "mere" appellate court nominees. This will raise the stakes for both parties as to how the voters react to their conduct of the debate. Will the voters see the Democrats as ideological obstructionists doing the bidding of their puppet masters, the liberal interest groups? or the Republicans as risking Democratic intransigence by changing rules to force the approval of the President's nominee?
Perhaps the seven Republicans who worked hard to come up with this
peace plan will feel invested enough in their achievement to use their
considerable leverage to press Mr. Bush to make a reasonable, centrist
choice.
Perhaps the seven Democrates "who worked hard to come up with this peace plan will feel invested enough in their achievement to use their considerable leverage to press" their collegues to accept a conservative nominee who applies the law. Of course, the Times would never look for Democrats to seek compromise and reasonable approaches to differences of political philosophy.
Readers will recall that Justice Brown has called the New Deal a "socialist revolution" and praised a series of early 20th-century Supreme Court decisions in which worker health and safety laws were struck down as infringing on the rights of business.
The Times attacks Justice Brown for expressing a political opinion that it disagrees with, but fails to show any link between that political opinion and her judicial decisions. Justice Brown has a constitutional right to express her opinion as to the New Deal and other issues. The real question is whether her judicial decisions follow the law. Nothing indicates that Justice Brown has failed to apply the law in all cases.
In return, the seven Republicans appear to have
promised - or at least vaguely indicated - that they will protect the Democrats'
right to stop progress on two other nominees, including William Myers III, a
former lobbyist for mining interests who would otherwise end up serving on a
California appeals court that considers many critical environmental cases.
The Times seems to see service as a lobbyist as a disqualification for appointment to the Federal bench. Would the Times apply this standard to a lobbyist for an environmental group? If lobbying indicates a predisposition in judging cases it applies equally to both sides of the issue. Would this disqualify ACLU lawyers, criminal defense lawyers, insurance defense lawyers? Oops. We seem to be disqualifying everyone.
Lawyers represent clients and take positions that support the clients' interests. That does not indicate in any way that they cannot subsequently make an opposing position as a judge in applying the law. The Times simply shows its ignorance in suggesting that lobbying for mining interests should disqualify a lawyer as a potential judge.
While the idea of letting the majority rule is at the heart of much in American democracy, it has little to do with the Senate, where some members represent 10 times as many people as others. There is absolutely nothing unfair about allowing a minority that actually represents more American people to veto lifetime appointments of judges who are far outside the mainstream of American thinking.
Does the Times suggest that only those situations in which the minority "actually represents more American people" justifies the use of filibuster? This merely indicates the desperation of the Times in trying to find justification for that which it has opposed in the past. Will the Times support Republican filibusters of Democratic judicial nominees or will they be calling for the end of such filibusters?
# posted by Thomas A. Becket : 7:43 AM
