On January 10, 2003, The San Antonio Express News offered this view of Bush’s judicial dilemma, “When Bush was governor of Texas, he had a genius for bipartisanship, based in part on his ability to nominate moderates to important positions. At a time when America urgently needs to be united, we urge Bush to return to his successful Texas strategy.” On May 27, 2003 The Louisville Courier-Journal echoed this call, “And of course, the country and the judiciary would benefit from greater consultation between the White House and Senate to avoid incendiary nominations of ideologues to judgeships. Republicans seem bent at the moment on demanding immediate victory on every issue. That attitude makes for bad government and is one Republicans themselves are likely to regret when, as they inevitably will, the political winds shift.”
Robert Bennett, a professor at Northwestern University’s Scool of Law, explains in The Chicago Tribune on May 20, 2003:
- “Think of five friends who get together every Sunday for recreation. If they vote on what to do each Sunday, and three of them like to play poker, while the other two enjoy going to a movie, would they likely vote each Sunday to play poker, 3-2? Probably not, at least if their friendship is to endure. They would likely play poker three Sundays out of five and go to the movies the other two times. And that result might well be fostered by a rule that allowed any individual (or any two individuals) to exercise a “veto” over that week’s choice.
Now the United States is unlikely to break up anytime soon, but that does not make accommodation of legitimate minority sentiment any the less important to the healthy functioning of the enterprise as a whole. I have no way of knowing what has been happening behind the scenes, but Senate Democrats say that they have been entirely shut out of the process of selecting nominees for judicial offices. That would not be appropriate even if the Republicans had more than a two vote edge in the Senate and even if George Bush had been elected with a majority of the popular vote and a substantial edge in the Electoral College. But they don’t, and he wasn’t. The Republicans barely control the Senate, and Bush did not, to say the least, gain office with some mandate to shape the federal judiciary for years to come.
If in fact the Senate Democrats have been shut out entirely from the judicial selection process, in using the filibuster to block a couple of those nominees they might well not be subverting but rather furthering the healthy functioning of American democracy.”