Don Presidente
President Bush must step it up on judges.


Shannen W. Coffin

“Some day, and that day may never come, I’ll call upon you to do a service for me. But until that day–accept this justice as a gift on my daughter’s wedding day.”–Vito Corleone to Bonasera the Undertaker in The Godfather.

It is time for George W. Bush to call on those who owe a service to him. When John McCain came to the president and sought “justice” from the political insults of his enemies, Don Presidente granted his request and signed McCain-Feingold into law, despite his serious reservations with its legality. When Arlen Specter sought protection from the slights of his fellow Republicans, Don Presidente stepped into the Republican Senate primary in Pennsylvania and backed Specter over his more conservative challenger, Pat Toomey, drawing the howls of Bush’s most ardent supporters. Many others have called on the kindness of the president for similar political favors, not to be disappointed. Early in his tenure as capo, he even reached out to the other families, appointing two of President Clinton’s holdover nominees to the federal courts of appeals.

And what does he have to show for these acts of kindness? Very little. Languishing in the Senate for the last four years are a group of highly qualified, top-notch nominees to the federal court, supported by a majority of U.S. senators but unable to receive an up-or-down vote. Fueled by ultra-liberal interest groups like and People for the American Way, Democrats have successfully blocked the majority of the Senate from exercising one of its most important constitutional functions, advising on and consenting to the president’s nominees to the federal court. Using the filibuster, a procedural device never before used to block a judicial nominee who would otherwise be confirmed by the Senate, Democrats in the Senate have prevented nearly 1/3 of the president’s nominees to the U.S. Courts of Appeals, the prestigious courts that sit in review of lower-court judgments. Because of obstruction by Democrats, President Bush has been the victim of the lowest confirmation rate for appellate-court judges in modern history.

And the situation may worsen before it improves. On the horizon is the possible retirement of one or even several Supreme Court justices. Democrats, bruised by over a decade of electoral losses in Congress, realize that their only real chance to govern is through the courts. So they will demand the appointment of Supreme Court justices who will continue the trend of judicial activism that has tied the hands of the elected branches of state and federal government on issues like the death penalty, marriage, and decency, and even protection of the homeland. The only problem with their approach is that they do not control the presidency and the commensurate power to appoint those justices. President Bush has sought just the opposite–judges who will not impose their personal political beliefs on society through their judicial decisions. The filibuster, then, is the Democrats’ last remaining hope to achieve their utopia of governance by judges.

Faced with this unprecedented obstruction, Republicans in the Senate have, until very recently, done little to respond. But Senate Republican leadership now appears ready to overcome the Democrats’ obstruction. Recently, Senate Majority Leader Bill Frist proposed a change to Senate rules that would guarantee an up-or-down vote on the president’s blocked judges while at the same time preserving the Senate’s tradition of vigorous debate on each nominee. Frist and his Republican leadership have stepped up the pressure, both in public and privately, on their Republican colleagues to support the rule change–called the “constitutional option” by Republicans in light of its constitutional foundation in the Senate’s ability to establish its own rules of procedure.

Some Senate Republicans are wavering, if not openly opposing, support for the Republican plan. John McCain (R., Ariz.), motivated by fears that Democrats may someday control the presidency and the Senate, recently announced his opposition to the constitutional option. Arlen Specter (R., Pa.) says he hasn’t made up his mind about how he would vote. Others, such as John Warner (R., Va.), Chuck Hagel (R., Neb.), and Susan Collins (R., Maine) remain publicly uncommitted, as Frist and company scramble to lock down the 51 votes needed to ensure the end of judicial filibusters.

Strangely silent in all of this is President Bush. Asked at his recent press conference, he expressed a modest “hope” that his “nominees get an up or down vote.” While the vice president has stated that he would vote to break a tie in the Senate if called upon to do so, the president has declined to weigh in further on Senate Republican efforts to end the filibuster, treating the filibuster issue as an internal Senate matter.

No one has more riding on Senate Republican leadership efforts to end Democrat obstruction than President Bush, and no one has a greater pulpit to make it happen. Confirmation of his judicial nominees is no more a purely internal Senate matter than congressional passage of Social Security reform, a subject on which the president is putting a full court public press. But while as much, if not more, of his legacy rides on the confirmation of his judicial selections, President Bush has been virtually mute. Maybe the president is working behind closed doors to shore up support for the Senate rule change, but it is time he did more publicly to support Senator Frist and Republican leadership. Perhaps a little old-fashioned arm twisting is in order. At a minimum, he should take to the stump to support Senator Frist’s proposal.

Laura Bush joked at this weekend’s White House Correspondents’ Dinner that her mother-in-law Barbara was more like Don Corleone than the sweet grandmother everyone thinks she is. How about a little “like mother, like son” action? No one is suggesting that Senators McCain or Specter or those other wavering Republicans wake up with a horse head in their beds, but they might be reminded that the president supported them when they needed him most. President Bush should call on them to render to him this very important service.

Shannen W. Coffin, a Washington, D.C. attorney, is a former deputy assistant attorney general for the civil division of the U.S. Department of Justice. His wife, Casey, is not at all happy about his comparing the president to a fictional mobster, even in jest.