Wednesday, April 30, 2003
Breaking the judicial stalemate: I heard Rush LImbaugh mentioning this subject as I drown into work, and then read the National Review Online article he was apparently referring to.
Basically the idea to get the recalcitrant Democrats to stop their unprecedented filibuster of Bush judicial nominees is to use the recess appointment power -- but not in the way it is commonly used. Usually, if the Senate fails to act on an appointee (usually a political appointee, but sometimes a judicial nominee), the president waits until the Congress is out of session and then places the person in the job by way of a recess appointment.
Well, here's the twist suggested by Cato Institute Fellow Randy E. Barnett:
President Bush could threaten to line judicial openings with committed conservative and libertarian recess appointees, people who are too old, too young, too smart, too conservative, or too burned by previous failed nominations to ever be considered for ordinary judicial appointments. Unlike practitioners who cannot abandon their practice for a short stint on the bench, professors who can take a few semesters off and judges with no prospects of higher judicial office would be ideal. It would be like a judicial clerkship program for conservative and libertarian law professors that can continue as long as there is a Republican president.
If the Democrats don't think they like "stealth" candidates like Miguel Estrada, just wait until they experience the delights of judges Richard Epstein, Lillian Bevier, Bernard Siegan, Lino Gragia, and dozens more like them on the Courts of Appeals. Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court? For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees.
It's an interesting suggestion -- and I can guarantee the Democratic party would go ballistic. You wouldn't have to worry about them putting pork in spending bills because they'll be too busy having cows.