Boston Would somebody please tell George W. Bush that he is not commander in chief of the judiciary? No matter how "hot" he looked in his flight suit, black robes require a cooler demeanor.
The administration seems to think that the president has the right to appoint judges the way he can appoint overseers to Iraq. It has forgotten that the Senate is supposed to advise and consent -- and sometimes dissent.
At the White House last week, Bush declared a crisis in the judiciary. "Highly qualified judicial nominees are waiting years to get an up-or-down vote from the United States Senate." He blamed it on "obstructionist tactics."
Well, first of all, declaring a crisis doesn't make a crisis. We aren't looking at empty seats all over the federal courthouses of America. The number of vacancies is the lowest in 13 years. As for obstructionists, the Senate has already approved 98.4 percent of his nominations -- 22 circuit court nominees and 101 district court judges.
Bush's confirmation success rate is way higher than Clinton's. The difference is that the Clintonites languished in committees, while the wrangling over these wannabes has gone public.
Up to now, the Democrats have been judicial pacifists. Now, a handful of nominees have proved so contentious that they've rallied a filibuster against two of them. And this is what Bush decries as a threat to "judicial independence?" This is what's led the administration's doctor, Sen. Bill Frist, to dial 911 in search of some anti-filibuster emergency?
To find out just who's playing politics, let's go to the videotape. The two nominees who are the subjects of a filibuster are:
1. Miguel Estrada. He's dubbed "the stealth candidate" because he took the "judicial Fifth" during his Senate hearings. As Tom Daschle said, "he's refused to fill out his job application."
2. Priscilla Owen. She's BAAAACK. The Texas justice, who once required a minor to prove she was aware of the religious objections to abortion, failed to be confirmed last year. Now, with a Republican majority, they're try-try-trying again.
These aren't even at the top of my dance card of Bush nominees worthy of dissent. Consider California's Carolyn Kuhl, a judge who dismissed a claim that a woman's privacy was violated when her doc invited a drug company rep to witness her breast exam without consent. Or James Leon Holmes, the former president of Arkansas Right to Life who wrote that "the wife is to subordinate herself to her husband." Or William Pryor, the current Alabama attorney general who believes that "God has chosen through his son Jesus Christ, this time and this place for all Christians ... to save our country and save our courts." Are these mainstream jurists who should be waved onto the higher bench with nary an unkind word?
Yes, it's getting nasty out there. The wrangling we've seen over the Supreme Court is filtering down to the appellate courts. Because the importance of the lower courts is percolating up to the politicians.
Last year, the appeals courts made more than 28,000 decisions affecting everything from civil rights to the environment. The Supreme Court, which decided 151 cases in 1982, now hears about half that number.
If appellate courts are setting the law for the land, there's also a growing sense that judges are policy makers and breakers. "For generations," says Sheldon Goldman, a University of Massachusetts political scientist and author of "Picking Federal Judges," "there was a judicial mythology that was widely believed by the American public that judges find the law that objectively exists out there."
We don't think judges make law out of whole cloth, but there's enough ambiguity in statutes, precedents and mindsets for some very personal weaving. So, politics have become polarized and judges have become personalized. And the two make a volatile mix.
"The process itself has gotten ugly," says Sarah Binder of George Washington University, who's writing a book on judicial appointments, "but the underlying dispute about how they will rule when they are on the bench is a reasonable question to be fought over."
As for busting the filibuster? The Constitution tells the Senate to advise and consent. It is says nothing about consenting by a simple majority or a super majority.
There are about 200 appellate judges making laws that govern 291 million Americans. The bench of the Republican Party is, literally, the bench. For some people the wake-up was Bush vs. Gore. For others the warning bell is Roe vs. Wade.
These lower court squabbles may well be a warm-up for the main event, the next Supreme Court seat. All in all, there's something worse than fighting over judicial nominees. It's letting them into a lifetime job without a fight.
Come to think of it, maybe combat gear may be just the right costume.