Senator Patrick Leahy delivered a speech a few months ago announcing his wish for the Bush administration, should a Supreme Court vacancy arise, to consult closely with Democratic senators to secure their approval of prospective nominees. Remarking on the future confirmation process, Leahy wasn’t shy about telegraphing his intentions should the administration fail to heed his demand to be placated: His speech’s title was “Supreme Court Preview: It Doesn’t Have to be Armageddon.” Leahy’s speech is one more indication, added to the statements of several Democratic presidential candidates, that Democrats plan on waging all-out war against any Bush Supreme Court nominee who refuses to preemptively declare his future judicial rulings on specific legal controversies.
Leahy has made something of a career out of undermining Republican nominees, no matter how talented and well-qualified. During his brief incumbency as the chair of the Senate Judiciary Committee, Leahy saw to it that few Bush appellate nominees passed through his committee without being subject to a bruising trial of innuendo and partisan attack, if not to scuttle the nominee, then at least to tarnish reputations and hamper effectiveness once the nominee has taken office. And those were the nominees that even received a hearing before his committee.
But Senator Leahy is in a different position now that his party is no longer in control of the Senate and he has lost his chairmanship of the Judiciary Committee. Now he has resorted to leading filibusters against fully qualified appellate nominees despite the fact that–actually, because–those nominees would easily be confirmed by the full senate. At this point Senate Democrats have already filibustered four nominees, and will likely filibuster three more. That’s not only a bad faith use of the filibuster, it’s unprecedented–before the Estrada nomination, the filibuster had never been used against a circuit-court nominee.
Leahy claims that there is constitutional precedent for his demand and cites as primary evidence a few instances in which previous presidents, faced with a Supreme Court vacancy, have consulted amicably with senators to ensure the tranquility of the confirmation process.
It’s true enough that presidents often consult key senators before nominating a Supreme Court justice. But Leahy speaks as if President Bush has refused to do so. There is no Supreme Court vacancy yet to fill, and there is no evidence that President Bush does not intend to consult Senate leaders as part of the process of selecting the next nominee to the Supreme Court. Nor is there evidence that the president will seek to nominate a divisive figure. All of his nominees to the lower courts have received “well qualified” or “qualified” ratings from the American Bar Association (ABA), Senator Leahy’s previous “gold standard” for judicial nominees.
President Bush has wisely rejected Leahy’s delightfully self-titled “modest proposal.” The president is surely circumspect about entering into political agreements with Senator Leahy, who has always done his best to antagonize Bush’s nominees. Indeed, there is something audacious about a politician who, while endowed with power, behaved in such a manner that he came to be viewed as among the most-partisan figures in Congress, but now lacking power makes solemn requests of his adversaries for special arrangements to ensure that his opinions are properly heeded.
A better explanation for this unprecedented request is that Leahy, knowing the bitter fight Senate Democrats plan to instigate, is making a play for magnanimity, hoping that the Bush administration will end up taking the blame for the ensuing melee.
Senator Leahy has advertised his proposal as a way for “the President to try a unifying approach,” again speaking as if President Bush has previously nominated someone divisive, let alone anyone at all, to the Supreme Court. My bet is that President Bush’s Supreme Court nominee will be someone who is committed to impartially interpreting the law, rather than engaging in acts of sociological pioneering from the bench in the style of Senator Leahy’s preferred Justices. Pat Leahy should take his own advice and try something new: Allow a confirmation process that is free of the partisan ferocity that he has often worked so energetically to promote.
–Jack McMullen is Sen. Patrick Leahy’s 2004 Republican opponent.