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   How to end the war over judges

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4/29/2003 12:00 am

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Entered 9/4/2003, Updated 9/4/2003

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The one real power Republicans have over the Democrats in this fight is the recess-appointment power. It's the only threat that could force Senate Dems to budge. The Founders created the recess-appointment power to assure that the judiciary could continue to function if circumstances or political factions prevented the Advise and Consent process from functioning effectively. Recess appointments have an impeccable historical pedigree; ... President Bush could threaten to line judicial openings with committed conservative and libertarian recess appointees, people who are too old, too young, too smart, too conservative, or too burned by previous failed nominations to ever be considered for ordinary judicial appointments. Unlike practitioners who cannot abandon their practice for a short stint on the bench, professors who can take a few semesters off and judges with no prospects of higher judicial office would be ideal. It would be like a judicial clerkship program for conservative and libertarian law professors that can continue as long as there is a Republican president. If the Democrats don't think they like "stealth" candidates like Miguel Estrada, just wait until they experience the delights of judges Richard Epstein, Lillian Bevier, Bernard Siegan, Lino Gragia, and dozens more like them on the Courts of Appeals. Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court? For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees. The beauty of this threat is that it need never be implemented. Once a suitably long list is circulated privately or, if need be, publicly President Bush can offer not to appoint any of them in return for a floor vote on all his current and future nominees. Senate Democrats won't have to commit to voting for the president's nominees, they would just need to commit to allowing a full-Senate vote. To cement this new social contract and end the downward spiral and for the sake of fairness Senate Republicans would commit to support changing Senate rules to ensure that nominees of future Democratic presidents also get the same right to a floor vote.


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