The Right Coast

April 30, 2005
The Politics of the Judicial Filibuster
By Mike Rappaport

While I have tried to evaluate the constitutionality and the policy underlying the filibustering of judicial nominees in a nonpartisan manner, that does not mean I don't see the Democrats' strategy or find it deeply troubling. Steve Calabresi powerfully explains the damage done by these filibusters here. Consider this excerpt:

Why are Senate Democrats so afraid of conservative judicial nominees who are African Americans, Hispanics, Catholics, and women? Because these Clarence Thomas nominees threaten to split the Democratic base by aligning conservative Republicans with conservative voices in the minority community and appealing to suburban women. The Democrats need Bush to nominate conservatives to the Supreme Court whom they can caricature and vilify, and it is much harder for them to do that if Bush nominates the judicial equivalent of a Condi Rice rather than a John Ashcroft.

Conservative African-American, Hispanic, Catholic, and female judicial candidates also drive the left-wing legal groups crazy because they expose those groups as not really speaking for minorities or women. They thus undermine the moral legitimacy of those groups and drive a wedge between the left-wing leadership of those groups and the members they falsely claim to represent.

The filibuster of judges has crippled the Bush administration's efforts to appoint judges like Scalia and Thomas to the federal courts of appeals. Take the D.C. Circuit--a federal appeals court that all agree is second in importance only to the Supreme Court, and a grooming place for future Supreme Court nominees. In his eight years in office, Ronald Reagan appointed Robert Bork, Antonin Scalia, Kenneth Starr, Laurence Silberman, James Buckley, Stephen Williams, David Sentelle, and Douglas Ginsburg to this all-important court. Five years into his presidency, George W. Bush has appointed only a single judge to that court, John Roberts. The score on the D.C. Circuit is Reagan eight, Bush one--thanks to Senate Democrats and the filibuster.