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Benching Bork
How to end the war over judges.


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With their unprecedented filibuster of Miguel Estrada, Priscilla Owen, and others, Senate Democrats have once again raised the ante in the war over the present and future of the judiciary. The New York Times is opposing yet another Bush appointee, Carolyn Kuhl. The Washington Post has come out against yet another, Bill Pryor. And the list goes on.

With each escalation, Democrats have confronted Republicans with the option of either capitulation, by refusing to nominate any conservative appointees, or escalation. Rather than capitulate, Republicans have opted for a “tit-for-tat” strategy. Instead of inducing cooperation by the Democrats, however, these retaliations have induced Democrats to persistently double their bets with each Republican countermove, creating what legal theorist Larry Solum has called a downward spiral over the judiciary.

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At the moment, Democrats and their activist cadres have obviously calculated that Republicans have no means of retaliating that would not hurt Republicans more than Democrats. So what if the Senate is tied up indefinitely by a filibuster? This only means that the Bush tax plan remains unenacted and the economy flat-lined until the next election. So what if no Medicare reform is adopted? This only preserves an issue for Democrats to run on in the next election cycle.

The one real power Republicans have over the Democrats in this fight is the recess-appointment power. It’s the only threat that could force Senate Dems to budge. The Founders created the recess-appointment power to assure that the judiciary could continue to function if circumstances or political factions prevented the Advise and Consent process from functioning effectively. Recess appointments have an impeccable historical pedigree; beginning with George Washington, presidents have made recess appointments to Article III courts. Since the Founding there have been more than 300 recess appointments of judges. President Eisenhower and Kennedy made 53 such appointments between them. Lest we forget, both Earl Warren and William Brennan were recess appointments to the Supreme Court by President Eisenhower (later confirmed by the Senate).

The main problem with a recess strategy is that it makes the GOP’s best nominees temporary second-class judges. Not only would this fail to realign the judiciary, but it would deter the most promising judicial candidates from accepting. For this reason, recess appointments, as currently conceived, are not a credible threat. Well, until you add a twist.

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.

Of course, these recess judges and justices would serve only until the end of this session of Congress, but for an academic or near-retiring judge with no future judicial ambitions, this would not serve as too great a deterrent. Imagine the fascinating opinions we would get from these “untenured” judges before they exit the judicial stage. Though they cannot prevent recess appointments, Democrats and their left-activist allies would likely try to deter prospective nominees by trashing the reputation of those appointed this way. There will be some safety in numbers, however, as it will be hard to focus on 30 or 50 nominees, all with impeccable credentials, at the same time.

The beauty of this threat is that it need never be implemented. Once a suitably long list is circulated privately — or, if need be, publicly — President Bush can offer not to appoint any of them in return for a floor vote on all his current and future nominees. Senate Democrats won’t have to commit to voting for the president’s nominees, they would just need to commit to allowing a full-Senate vote. To cement this new social contract and end the downward spiral — and for the sake of fairness — Senate Republicans would commit to support changing Senate rules to ensure that nominees of future Democratic presidents also get the same right to a floor vote.

But if Senate Democrats reject cooperation, then the courts will be packed by heavy-hitter libertarian and conservative intellectual judges for the next two years. Perhaps by threatening the Democrats with an outcome that left-activists in their base prefer even less than the nominees they now are filibustering, the current death spiral can end.

At worst, the American people will finally find out if the world is a better or worse place if the judiciary is dominated by libertarians and conservatives. If the results are not as catastrophic as the Democrats always warn — the way they do about private Social Security accounts and school vouchers — maybe some of these recess judges might even get confirmed in the end. Then the judiciary will be revolutionized, in less time than the normal confirmation process would ever allow. Can the Senate Democrats and their activist cohorts afford to take that chance?

Randy E. Barnett is the Austin B. Fletcher Professor at Boston University School of Law, a senior fellow of the Cato Institute, and the author of The Structure of Liberty: Justice and the Rule of Law.



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