Bench Memos

NRO’s home for judicial news and analysis.



This article from Sunday’s New York Times claims that there is a “strong consensus” among both Republicans and Democrats that the nominations of William Haynes to the Fourth Circuit, William Myers to the Ninth Circuit, Terry Boyle to the Fourth Circuit, and Michael Wallace to the Fifth Circuit are all “doomed”.  Maybe, but maybe not.  In any event, any such consensus may be wrong.


The sad fact is that many Senate Republicans instinctively overstate the difficulty of confirming any nominee whom Democrats label controversial.  These Republicans, many of whom present themselves as conservatives, are highly risk-averse and see an issueless campaign as the easiest path to re-election.  From their perspective, making the case for a controversial nominee creates a potential election issue.  Far better, therefore, quietly to convince the President and the nominee that the nomination should be withdrawn (or not resubmitted).


It is this narrowly self-interested thinking, I believe, that explains why Senate Republicans failed to make judicial confirmations an issue in the past election.  Never mind that it would almost surely have helped Republicans as a whole—including troubled Senate incumbents and some challengers. 

President Bush should renominate these four nominees and demand up-or-down votes in committee, both in the lame-duck session and in the next Congress.  If Democrats are going to block the President’s nominees, they should do so on the record.  And Republicans should be forced to decide whether to stand up for them.

Tags: Whelan


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