Bad bargain: Bush gave up too much in deal on judicial nominees

What could President Bush have been thinking when he made a deal with Senate Democrats in order to get a Senate vote on some of his judicial nominees?

Well, he could have been thinking that some new judges would be better than none. After all, there are vacant judgeships that need to be filled, and the Democrats, by filibustering, are stonewalling all of Bush’s appointments.

Or Bush may have thought that his end of the bargain was not much to give up. He had to promise not to make any more recess appointments during the remainder of this term, which he probably wouldn’t have done anyhow.

Or he may have thought that he and his staff had enough to worry about, what with running the war on terror, and it would be nice to get rid of one distraction.

You have to sympathize with the president’s dilemma.

In principle, however, the bargain was wrong. It skirts the Constitution in two ways.

First, Bush has a constitutional right to make recess appointments — which are temporary assignments that a president can make without Senate consent while Congress is in recess. Even if he didn’t expect to use that right for the remainder of the year, he should have protected it.

Second, the Senate has a constitutional responsibility to vote on the president’s nominees for judge. There should be no striking of bargains to get the senators to do what they clearly are mandated to do.

The Democrats are bucking all of Bush’s appointments out of revenge because he used recess appointments to name Appeals Court Justices Charles Pickering and William Pryor.

There is no dispute about this. Angry Democrats had said they would use every means possible to stymie the other appointments. And there is no means that is beneath their dignity — not character assassination, not lies, not distortion of the facts, not the soiling of the reputation of a fine judge and good man like Charles Pickering of Mississippi.

Whatever excuse they might use for opposing a judicial nominee, there really is only one true reason, as many Democrats will admit. That reason is abortion. The Democrats want to pack the courts with pro-abortionists.

Under Bush’s deal with them, the Democrats’ Senate leader, Tom Daschle, will be allowed to hand-pick five Appeals Court justices and 20 U.S. District Court judges from those Bush has nominated. The other nominees will be kept in limbo.

That flies in the face of the Constitution.

Published in Editorials on May 25, 2004 12:07 PM