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Here Come the Judges: Geraghtyite Clarity v. Tapscottian Castor Oil

Thursday, May 18, 2006  |  posted by Hugh Hewitt

I pressed Tony Snow on the judicial nominations logjam yesterday because the White House’s inexplicable failure to position federal circuit court nominees for confirmation is the biggest failing of the second year of the second Bush term.

There are now at least nine circuit court vacancies without nominees, and two of them are on the D.C. Circuit –the nation’s second most important court.

Not only is time running out to arrange for Judiciary Committee hearings and votes prior to the end of this session, the left is anticipating the rush and already pumping out absurd talking points on “court packing,” which while historically illiterate (FDR’s real court-packing scheme was introduced in this “fireside chat” and proposed naming a new justice for every justice who hit the age of 70) will nevertheless be endlessly repeated by forces opposed to the orderly working of the Constitution’s process. Even if Chairman Specter genuinely dedicates the Judiciary Committee to its most important work, delaying tactics perfected by Dems will almost certainly cost President Bush at least some of his most lasting domestic legacy –a federal judiciary committed to the rule of law not the rule of courts.

Not that it matters much to the Tapscottian Caucus and their even more radical Bainbridgist revos. “Off with their heads,” and “verdict first, trial later” are the chants coming from the anti-GOP virtual mobs on the right. (Well, not quite. They only want an election night drubbing to remind the Republican electeds of their SACRED DUTY to stop Alaskan bridge spending.)

These are the days of the conservative Jacobites, demanding a return to Reagan’s principles (which is odd on many frnts since President Reagan’s deficits dwarfed those of today as a percentage of GDP and he signed the real amnesty of ’86 without getting a fence or serious employer sanctions.)

Today HFWM Mark Tapscott finally gets around to considering the impact of electoral rebellion on the federal judiciary.

HFWM Jim Geraghty answers, but then bolts for another extended blogging break, just as the face-painted-blue Bainbridgists are assembling.

But neither Tapscott nor Geraghty quite get the stakes involved, perhaps because they do not have to teach the ConLaw cases year in and year out.

The Tapscott argument is that there’s no guarantee that there will be another vacancy on SCOTUS, and even if there is, there’s no guarantee that the president would send up a nominee as good as Chief Justice Roberts, Justice Alito, Judge Pryor, Judge Brown, Judge Owens etc. (Those are all pretty good nominees. Why the certainty that the president will get most of the next few dozen wrong?)

This is of a piece with the grumblers elsewhere. Hardly a post goes by at where someone doesn’t denounce the president for the Miers nomination, though every time they do they buy again into the left’s vision of the Court and its members as high priests with vast duties undoable except by the select.

What is very odd is that many of those denouncing the Adminsitration and insisting on some electoral slap downs in the fall are also those who denounce Counsel Miers as regularly as they sip orange juice.

While it is possible both to have supported the Miers nomination (as I did) and to believe deeply in the importance of the courts and the battles to people them with great nominees, it is not possible to have denounced the Miers nomination and yet to wish for a GOP smash-up in the fall. Either the courts matter so much as to allow a politically-debilitating revolt against the president’s nominee using tactics of the sort usually confined to the left, or they don’t, in which case the Miers revolt was for some just posing for the internet cameras.

The courts do matter that much, and the consequences of losing the majority in the Senate or even the margin in the Senate that makes the Constitutional Option viable are vast and very troubling.

Do you really care about the abuse of eminent domain? The absurd decisions stripping “under God” from the Pledge or the tiny cross from the city seal of Los Angeles because of a threat from the ACLU?
How about the executive’s ability to conduct the war and keep unlawful combatants from clogging the courts with their demands for due process for terrorists?

Do you think that farmers should lose their fields to endangered flies, parents their custody rights to grandparents, parochial schools their eligibility for vouchers, activists –of left and right– their right to speak to the FEC/FCC?

The list goes on and on, and the left’s judges don’t give up and go home.

Every vacancy on the circuit courts will eventually get filled, either by President Bush or his successor (President Clinton?) and each of those appointments is twenty to thirty years of decisions with immediate impact far more real than dollars spent on public works in the far north.

And the SCOTUS nine have six members over the age of 65. Justice Stevens (born 4/20/20) is 86. Justice Ginsberg (born 3/15/33) is 73. Justice Scalia (born 3/11/36) is 70. Justice Kennedy (born 7/23/36) is two months shy of 70. Justice Breyer (born 8/30/37) is 68. Justice Souter (born 9/17/39) is 66.

Just because Justice Stevens seems intent on never retiring and has been blessed with great health doesn’t mean that this is the rule for all justices. Retirements and illnesses can change this court in an instant, and if the Senate’s GOP majority has diminished or even vanished, the course of the country’s history will be dramatically altered.

Mark writes that “it may not make much difference” who retires from SCOTUS because Attorney General Gonzales might be the nominee and adds:

Supreme Court appointments are important but they aren’t the most important consideration in these matters. Elevating the Court to such prominence is a sort of conservative echo of the liberals dependance upon the federal judiciary to impose decisions that ought instead be made in Congress.

This is simply not fair to AG Gonzales, who seems to me to have built an excellent case for the respect of conservatives, despite his views (or what are said to be his views) in the Michigan affirmative action cases.

But even more to the point, Mark so significantly understates the improtance of the SCOTUS as to leave me without much of a reply except to quote him from his thoughtful post urging the withdrawal of the nomination of Counsel Miers: “Let us all now pray for a wiser second choice because the nation needs it.”

Why pray then if losing control of the confirmation process now is not so important? Why did the country “need” a nominee other than Miers in October, but no future nominees of similar ability in the future.

Like every other goal worth pursuing, returning the federal juidciary to its modest and appropriate role, as well as the First Amendment and the Commerce Clause totheir intended operations, requires enormous patience over multiple presidencies, and there is always the possibility that the project is not possible given the seemingly inevitable tendency of jurists to aggregate more and more authority to themselves over time. Self-denying public servants are rare, and the effect of robing seems to be destructive of the ability to read Article I and II clearly.

But giving up the game is not the answer –electing more principled center-right conservatives is the answer.

So, Mr. Tapscott, please reconsider. Instead of anger, urge recommitment.

Send people off to Mike McGavick’s web site with an e-contribution in hand so Washington State gets a senator serious about border security.

Urge folks to do the same at Tom Kean’s web site so New Jersey doesn’t remain unrepresented by even one person in favor of a defensible border.

Don’t get mad. Get even. Bigger majorities, that is.

And if you were a vocal opponent of Harriet Miers, please explain why that battle mattered so much, but the Senate majority/margin doesn’t.


(1) HFWM = hale fellow, well-met.

(2) HFWM Mark Tapscott has added more to his excellent post, gracious as always, but I sense unpersuaded.

(3) I ought to have said “thread” not “post” when referring to above.


Quin objects.

As does the Professor of the Vines, who writes

By the way, with reference to Hewitt’s neologism “Bainbridist,” might I direct your attention to Hewitt’s own attack on Andrew Sullivan’s use of the term “Christianist”:

Most pundits have rejected “Christianist” because it obviously tries to link Islamists and those evangelicals Mr. Sullivan loathes.

If that’s what “Christianist” “obviously” does, what the hell does “Bainbridist” do?

Other than drive traffic to his site?

Given that I self-identify as a Geraghtyite, I can only apologize to Professor B. and plead that it was Atomizer’s idea.

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