Judges in the mold of Scalia and Thomas. We heard it in 2000 from then-candidate Bush. We heard it again in 2004 from re-election-seeking President Bush. Conservatives approved and showed up in droves to vote on both occasions.
Now flash forward six years. Not exactly what we envisioned.
Earlier this week, Milan Smith, a California real-estate attorney, was confirmed by the Senate 93-0 for a seat on the ever-problematic 9th U.S. Circuit Court of Appeals -- the notorious kids-can't-say-"under-God"-when-reciting-the-Pledge-of-Allegiance court. The brother of Oregon Republican senator Gordon Smith, Milan Smith has been described as a "moderate" Republican. When I hear that word to describe a Republican judge, I think Sandra Day O'Connor or Anthony Kennedy.
Shiver.
Nominated as recently as February, Smith breezed through the process, due in no small part to the recommendation of his home-state senator Barbara Boxer, who cited Smith's "excellent record of public service." Yes, I did say he was recommended by Barbara Boxer. She's not exactly a fan of Justices Scalia and Thomas. In fact, it's safe to say that Boxer's choice for a federal judge would be someone who would only mouth the names Scalia and Thomas while sneering and only in a conversation about "extremist judges" never to be emulated. Yet the president and his White House judicial-nominations staff, not to mention the Senate's pro-family conservatives, seized upon Boxer's recommendation of any Republican, even a moderate one, and today we have a new 9th Circuit judge -- albeit one who has not received a warm endorsement from any conservative source that I'm aware of.
What makes Smith's quick-and-easy confirmation particularly disturbing is that for the last few years, Republicans have had to fight -- mostly unsuccessfully -- against Democratic filibusters of Bush's appellate nominees. That changed last year, when the GOP threatened real reform and a return to the Constitution's majority approval (nowhere does the Constitution require an actual vote) requirement for judges. Last May, the "constitutional option" was loaded, aimed, and then holstered at the 11th hour due to the "Gang of 14" compromise agreement. Seven stalled appellate judges were confirmed as a result.
But five more long-suffering nominees continued waiting, three passing the two-year mark, and two more celebrating their fourth year in nomination limbo. Then the two Supreme Court vacancies interrupted any further progress on appellate judges until February of this year. Of the five judges left hanging last year, one (Henry Saad -- 6th Circuit -- nominated in 2001) withdrew his name, and four (Terrence Boyle, William Myers, William "Jim" Haynes and Brett Kavanaugh) remain in various stages of the process. Responding to calls for some type of movement on these nominees by the conservative base, Senate Majority Leader Bill Frist breathed some fire late last month and announced that Kavanaugh would get his up-or-down vote before Memorial Day.
And then Milan Smith got quietly confirmed. Few people are aware that the same thing happened last month when another appellate nominee, Michael Chagares, was confirmed without fanfare to a seat on the 3rd Circuit Court of Appeals, in a deal worked out by the White House with the liberal Democratic senators from New Jersey involving some liberal picks for the federal district court openings there. And a recent Detroit News article reported a deal reached by the administration with Michigan's two Democratic senators reportedly allowing one out of every three or four judicial picks in that state's federal courts to go to the Democrats. The question has to be asked by conservative voters: Are we getting what we bargained for? It sure doesn't feel like it.
Kavanaugh, Boyle, Myers and Haynes certainly fit the mold of conservative jurists, but they're still waiting for an up-or-down vote. And when their nominations do make it to the Senate floor (if ever), we're going to hear the familiar wailing of the liberals decrying "out of the mainstream" nominees while pointing to the confirmations of Smith and Chagares as examples of how reasonable they can truly be. And what will be Sen. Frist's response? That the White House is settling for less than it promised?
But that, of course, begs the question "why?" If candidate Bush had campaigned in 2000 and 2004 on "I'll make the best deals I can with liberals on judicial nominations," would that have lit the fire of conservatives anxious to reverse the activist trends of the federal courts? Of course not.
And just talking about tactics for a moment, why didn't the Republican-controlled Senate bring up last year's five (now four since Saad got tired of waiting) remaining appellate nominees first, back in February, after the Alito confirmation? Address any criticisms against the judges, just as the administration did so well with the Roberts and Alito nominations, and push those nominations to a vote and/or bust the filibuster. It seems that the White House -- or the Senate Republicans -- are weary of fighting these battles; they've left Boyle and the others with real strict-constructionist credentials on a slow track to nowhere, while giving the likes of Milan Smith what amounts to a free pass.
There are currently 53 vacancies on the federal bench, with only 23 nominations pending. The White House has announced that nominations for those remaining spots are imminent, but time is a factor given the upcoming November elections. If Republicans manage to lose control of the Senate, whatever is left of the hope for judges in the mold of Scalia and Thomas will become a distant memory.
So it's crucial that you call your senators and encourage them to push now for the confirmation of pending nominees, especially the four holdovers from last year. While you're at it, let the president know that you haven't forgotten his campaign promise on judges, and that if he'll nominate them, you'll help him fight for the good ones who still hold the Constitution in awe.
There's too much at stake to do anything less.
TAKE ACTION
Write your two U.S. senators and urge them to support the confirmation of President Bush's appeals-court nominees Terrence Boyle, William Myers, William "Jim" Haynes and Brett Kavanaugh. For contact information, including an easy-to-use e-mail form, log in to the CitizenLink Action Center.
