Bench Memos

Losing the Judge Issue

It is fairly clear at this point that Republicans have missed an oportunity to make judicial confirmations a signficiant issue in the 2006 elections.  As for who deserves the blame, I find the Novak account placing responsibility on the White House more persuasive than Manuel Miranda’s argument (noted here ) pointing the finger at Senate Majority Leader Frist.  While I agree that Frist has been somewhat complacent, and has allowed the confirmations of a few nominees (e.g. Boyle, Myers) to languish, the Senate has continued to move judicial nominations at a reasonable rate.

 The larger problem, in my view, has been the slow pace at which the White House has moved to fill judicial vacancies, and the administration’s apparent unpreparedness for pending judicial vacancies.  It is outrageous that terrence Boyle has waited so many years for a simple up-or-down vote, but the mistreatment of one or two nominees does not make a campaign issue make.  Without a lengthy backlog of nominees — particularly nominees that fire up the base and provoke Democratic opposition — nominations fights for lower courts are just inside baseball.  Instead, the White House has moved quite slowly, and  (as Ed Whelan has observed) has allowed political considerations to influence its judicial picks, leaving the base uninspired.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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