President Bush, the Senate and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution

Conclusion and Recommendations: Where do we go from here?

Historically, the make-up of the federal bench has generally resembled a gently swinging pendulum - moving somewhat to the left under a Democratic President, swinging somewhat to the right under a Republican. During the Reagan-Bush era, in fact, it wasn't gentle at all, but a marked rightward shift. As discussed above, President Clinton, by contrast, tended more towards the middle, appointing moderate nominees.

But when Republicans took over the Senate in 1995 and began their stalling campaign against Clinton nominees, they effectively placed their hands on the pendulum. Now right-wing advocates wish to push the pendulum far to the right, by filling the vacancies they helped to perpetuate, particularly on the crucial appeals courts, with right-wing ideologues.

The Constitution makes it clear that the President and the Senate share responsibility for appointments to the federal judiciary. Under these unprecedented circumstances, dramatic bipartisan action is called for by both the President and the Senate.

President Bush should reach out to Senate Democrats in an attempt to repair the damage done by six years of Republican obstruction. He should restore the pre-nomination role of the ABA and seek out nominees who are not right-wing ideologues and who demonstrate an understanding of and commitment to civil and constitutional rights. In that regard, he should genuinely consult with Democratic as well as Republican Senators prior to nomination. This should include listening to and following advice on nominating specific suggested candidates. Indeed, nominations should as much as possible reflect a bipartisan consensus. In particular, renominating some of the highly qualified nominees treated so unfairly during the latter part of the Clinton Administration would be an important step.

The Senate should carefully and thoroughly review the President's nominees, particularly for the courts of appeals and the Supreme Court. They should hold out a clear standard of commitment to civil and constitutional rights, as more than 200 law professors have recently suggested. Mainstream nominees that reflect genuine bipartisan consideration should receive priority in processing.

Indeed, given how much is at stake - civil rights, reproductive rights, religious liberty, environmental protection, health and safety regulations, indeed, our entire constitutional framework - it is imperative that Democrats and moderate Republicans in the Senate take a clear and unequivocal stand. Senators must be willing to talk openly about the potential impact of right-wing domination of the federal judiciary, and must be willing to explain to Americans the importance of fighting nominees whose lifetime appointment would threaten their rights and liberties.

The irresponsible behavior of some Senators during the previous administration, and the number of vacancies now to be filled, present a challenge to President Bush and to members of the Senate. President Bush should reject the advice of his party's far right wing that he wage an aggressive partisan campaign for right-wing ideological domination of the courts. Senate Judiciary Committee Chairman Patrick Leahy should move judicial nominations only when the committee has had time to give them sufficient consideration.

In addition, the Senate should not hesitate to fulfill its constitutional responsibility of rejecting and withholding its consent from nominees who do not demonstrate qualifications that include a firm commitment to broad principles of equality and individual rights and an abiding respect for the Constitution and for the constitutional authority of the Congress. As the New York Times explained, while the President clearly has the power to nominate judges, Senators should not "move aside passively for confirmation of ideological jurists" who would seriously weaken civil rights and other protections and whose appointment could "distort the balance of the federal judiciary for decades to come."

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