By Jeffrey Toobin
Senate Democrats have displayed an uncharacteristic combativeness toward President Bush’s nominations to the federal bench. They have even launched filibusters to prevent votes on two appeals-court nominees, Priscilla Owen and Miguel Estrada.
Even more than Ronald Reagan, George W. Bush campaigned for the Presidency promising an ideological transformation of the federal judiciary, which includes six hundred and sixty-five district judges, a hundred and seventy-nine appellate judges, and nine Supreme Court Justices, all with lifetime appointments. Bush has cited Antonin Scalia and Clarence Thomas as the Supreme Court Justices he most admired.
Last year, he told an audience, “We’ve got to get good, conservative judges appointed to the bench and approved by the United States Senate.” That statement has been born out by his nominations, especially to the circuit courts of appeals. So far, Bush has nominated two hundred federal judges; more than half of them have been confirmed, as will most of the rest.
But the Democrats, even with their diminished status in the Senate, have managed to stop several of the President’s most controversial nominations. That struggle presages the even more significant battles that will take place if, as expected, one or more Supreme Court Justices retire in the next year or so. In part, the Democrats’ effort has been fuelled by the personal dynamics of the Senate, where an aggrieved minority can accomplish, or at least thwart, a great deal of legislative activity. But the confirmation disputes trace their roots to the Constitution itself, and to the shifting meanings of the senators’ obligation to advise and consent to the President’s choices of judges. Also, to be sure, the fight over the Bush judges reflects the legal battle—two generations old and counting—over abortion.