The Corner

“Changing The Rules”

TAP’s Mary Lynn F. Jones accuses the administration of wanting to “change the rules” on judicial nominations because Bush does not like the Democratic filibuster of Miguel Estrada. The argument might have merit if there were a longstanding tradition of nomination filibusters, but there isn’t. Miguel Estrada is the first nominee to a circuit court to be filibustered, ever. Justice Abe Fortas’ nomination to be Chief Justice was filibustered some 35 years ago, but a nomination to the Supreme Court is quite different than one to the appellate bench. Also of note, Fortas stood accused of unethical conduct and his nomination was withdrawn after the first cloture vote failed because of Democratic defections from the support of their party’s nominee — defections triggered by the ethical allegations. (Fortas later resigned from the Court under an ehtical cloud.) By opposing the filibuster of judicial nominees, Bush is only echoing the position embraced by Senator Leahy a few short years ago, when he said filibusters were always inappropriate for judicial nominees of either party. Who here is “changing the rules”?

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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