Bench Memos

NRO’s home for judicial news and analysis.

Gamesmanship over “Bipartisanship”


A commitment to bipartisanship does not mean abject surrender.  It should include a willingness to engage in respectful discourse with those of differing views and a shunning of cheap rhetorical gamesmanship.  By this standard, it is plainly President Bush’s critics who are failing to demonstrate a spirit of bipartisanship.


Consider today’s New York Times editorial on judges.  The editorial charges that President Bush has “resubmit[ed] a group of archconservative, underqualified judicial nominees that Senate Democrats have already said are unacceptable.”  Let’s unpack the distortions in these 16 words.


First, as I have previously explained, there would have been no need for President Bush to resubmit these nominations if Senate Democrats had not resorted to the extraordinary, and virtually unprecedented, measure of requiring the return of the nominations over an intrasession recess.  (In the Clinton years, Senate Republicans never pulled such a stunt, and, apart from the Democrats’ similar step at the outset of the summer recess, a well-informed source could recall only one previous incident in the past 30 years—done by Democrats against a Reagan nominee in the mid-1980s.)  Any bipartisan editorial would criticize what the Democrats did—and credit the President for merely restoring the situation that should exist.


Second, the editorial’s screeching rhetoric and extravagant allegations aside, there is no reason to regard any of these nominees as “archconservative” (whatever that epithet might mean). 


Third, the editorial uses the ABA’s “not qualified” rating of Fifth Circuit nominee Michael Wallace as supposed proof of his being “underqualified”.  As I have shown in detail, the ABA’s evaluation of Wallace was infected with multiple biases, feeble arguments, and violations of the ABA’s own procedures, and the ABA’s new chair of its judicial evaluations committee presented plainly false testimony at Wallace’s confirmation hearing.  (I have drafted, and intend to present, a more elaborate prima facie case of perjury by that chair soon.)  It is not fair, on the one hand, to ignore this evidence regarding Wallace.  And it is equally unfair, on the other, for the editorial not to accept the ABA’s judgment that the other nominees are amply qualified.


Fourth, the Senate has well-established processes for approving or defeating nominees.  Statements by individual senators to reporters do not suffice to do the job.  Somehow I don’t recall such a standard being applied in the Clinton years. 


Democrats will be in the majority in the next Senate.  With that power comes accountability.  Evidently Senate Democrats and the Left recognize that their embrace of liberal judicial activism is not popular with the American people, and, in order to avoid being held accountable, they want President Bush to abandon his nominees.  There is no failure of bipartisanship in his refusing to do so.


Tags: Whelan


(Simply insert your e-mail and hit “Sign Up.”)

Subscribe to National Review