Ken Klukowski: The Right to a Good Judge


ACRU Staff


March 6, 2009

This column originally appeared on on March 3, 2009.

There’s much commentary about civil rights and government power. But rights are only secure if a good judge is presiding over your case when you try to assert those rights. The process of confirming judges has been broken for years, and now Senate Republicans are asking for some bipartisan treatment to try to right the ship of America’s judiciary. President Obama should compel the Senate to keep the promise that Senator Harry Reid broke to his colleagues and the former president over the past two years about judges.

On Mar. 2, all Republicans in the U.S. Senate sent a letter to President Obama about judicial nominees. This letter, from every Republican senator (including the moderates from the Northeast), made one very reasonable request, and put the president on notice to respect their rights.

The request was that President Obama could build goodwill by following President Bush’s example on how to deal with former presidents’ nominees. When George W. Bush came to office, as a gesture of reaching across the aisle he re-nominated two judicial nominees that had been nominated by President Clinton but not received a confirmation vote in the U.S. Senate by the time Bill Clinton left office. Those two nominees, Barrington Parker and Roger Gregory, were promptly confirmed by the new Senate to lifetime positions on the Second Circuit and Fourth Circuit federal appeals courts, respectively.

So Senate Republicans are now asking for the same treatment for two or more of President Bush’s nominees. The senators have singled out three outstanding Bush nominees, Peter Keisler, Glen Conrad and Paul Diamond for President Obama to re-nominate. All three received accolades from Democrats and others across the aisle, and have received the “Well Qualified” highest rating of the American Bar Association.

Peter Keisler, in particular, should be confirmed to remedy a truly ridiculous situation. First nominated on June 29, 2006, Mr. Keisler’s nomination to the U.S. Court of Appeals for the D.C. Circuit languished in the Senate for no reason whatsoever for a full two and a half years until President Bush left office. Despite clearly having the votes to be confirmed, Senate Majority Leader Harry Reid refused to allow the Senate to vote. Keisler has impeccable credentials as one of the highest – ranking officials in the Justice Department, a graduate of Yale Law School and a former law clerk to moderate Justice Anthony Kennedy. Even the Washington Post and L.A. Times – that rarely see a conservative they like – wrote that Peter Keisler deserves to be confirmed.

What makes this situation more frustrating is that it required Senate Majority Leader Harry Reid – Democrat from Nevada – to break his word both to his Senate colleagues and also to the president of the United States. The last two two-term presidents, Ronald Reagan and Bill Clinton, saw the opposition party in control of the Senate during their last two years in office. For both of those presidents, the average number of appellate-court nominees confirmed by the opposition majority during that two-year period was seventeen. So Senator Reid promised the White House and Senate Republicans that he would adhere to that precedent as a fair number of confirmations to allow during the last two years of President Bushs term.

President Bush nominated twenty-four circuit court nominees. Harry Reid promised seventeen confirmations. Instead, there were only ten. That’s barely half.

Harry Reid should tread carefully. Many things in the U.S. Senate proceed on what is called unanimous consent, where no one objects to moving forward by dispensing with certain formalities and procedures. If Senator Reid continues to violate his word to Senate Republicans, they could make his job very difficult, very quickly.

President Obama should also tread carefully here. As Michael Barone has pointed out, Obama is now the only president in U.S. history to have participated in filibustering judicial nominations in the Senate. If Republicans give him the same treatment he gave President Bush, they could deny him dozens of judicial appointments.

Senate Republicans have taken a bold step in this letter, and President Obama should re-nominate these three individuals. Americans need good judges to uphold their constitutional rights, and these three nominees have the right to a confirmation vote.



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