Wednesday, May 07, 2008

McCain at Wake Forest University

From the speech:

Of course, in the daily routine of Senate obstructionism, presidential nominees to the lower courts are now lucky if they get a hearing at all. These courts were created long ago by the Congress itself, on what then seemed the safe assumption that future Senates would attend to their duty to fill them with
qualified men and women nominated by the president. Yet at this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina. Because there are so many cases with no judges to hear them, a "judicial emergency" has been declared here by the
Administrative Office of U.S. Courts. And a third of the entire Fourth Circuit Court of Appeals is vacant. But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy.

As my friend and colleague Senator Tom Coburn of Oklahoma points out, somehow these very same senators can always find time to process earmark spending projects. But months go by, years even, and they can't get around to voting on judicial nominations -- to meeting a basic Senate duty under our Constitution. If a lobbyist shows up wanting another bridge to nowhere, or maybe even a courthouse with a friend's name on it, that request will be handled by the Senate with all the speed and urgency of important state business. But when a judicial nominee arrives to the Senate -- a nominee to preside at a courthouse and administer justice -- then he or she had better settle in, because the Senate majority has other business and other priorities.

Things almost got even worse a few years ago, when there were threats of a filibuster to require 60 votes for judicial confirmations, and threats in reply of a change in Senate rules to prevent a filibuster. A group of senators, nicknamed the "Gang of 14," got together and agreed we would not filibuster
unless there were "extraordinary circumstances." This parliamentary truce was brief, but it lasted long enough to allow the confirmation of Justices Roberts, Alito, and many other judges. And it showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger.

There were not threats of a filibuster of nominees. There were actual filibusters of nominees--the modern sort, where the Senate president agrees that any topic can be brought to the floor without cloture except the subject of the filibuster.

There were not "threats" to change Senate rules to prevent a filibuster. There was a serious national campaign to make 2004 Senate races a referendum on the plan. Money and volunteers crossed state lines to ensure enough Republican Senators to implement the scheme. And despite the victory of Republicans and the efforts of the Republican leadership to fulfill their election promises, McCain & Co. torpedoed the idea for the "Gang of 14".

You can't name a judge or justice confirmed under the Gang of 14 who would have failed after the Nuclear Option. You can name several who went under the bus because the filibuster is still a possibility. It is because each and every nomination can result in a filibuster, that there is delay in nominations--the leadership must rally a supermajority every time. Ted Olson thinks this was just a "tactical maneuver" by McCain--perhaps he should give thought to why Democrats signed onto the same maneuver? They surely had no desire to get good judicial conservatives confirmed.

Perhaps McCain's Senate caracoles are not directly relevant to his possible performance as President; but he thinks we ought to remember it, because he brought it up. And he'd like some applause for it, too.

Let the verdict be McCain's:

It is part of the discipline of democracy to respect the roles and
responsibilities of each branch of government, and, above all, to respect the verdicts of elections and judgment of the people. Had we forgotten this in the Senate, we would have been guilty of the very thing that many federal judges do when they overreach, and usurp power, and betray their trust.

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