Republicans should welcome a judicial brawl.
Thursday, May 4, 2006 12:01 a.m. EDT
It's merely taken three years, but Brett Kavanaugh's nomination to the D.C. Circuit Court of Appeals is scheduled to come for a vote before the Senate Judiciary Committee today. Democrats are likely to oppose him in lock-step, and some on the left are urging them to use the F-word.
Anything is possible, but it's hard to believe Democrats are nuts enough to launch a judicial filibuster in the middle of an election year with a GOP President so low in the polls. Talk about a get-out-the-vote gift for Republicans. Then again, no one ever got rich overestimating the intelligence of the political class.
Mr. Kavanaugh is one of the "left-behind" nominees, who weren't covered one way or another by the bipartisan Gang of 14's no-filibuster deal last year. In a rational world, he wouldn't be considered anything close to controversial enough to trigger that accord's "extraordinary circumstances" exception. But the anti-Bush, anti-conservative animus isn't rational, and the main (only) charge against Mr. Kavanaugh is that he's allegedly too "partisan" to sit on the bench.
In the charming and revealing phrase of New York Democrat Chuck Schumer, Mr. Kavanaugh's nomination is "payment for political services rendered." Translation: Mr. Kavanaugh's career has been closely associated with some prominent conservatives. By this standard, Supreme Court Justices Stephen Breyer, who once worked for Senator Ted Kennedy, and Ruth Bader Ginsburg, who was general counsel of the American Civil Liberties Union, also don't deserve to sit on the bench because they were liberal partisans. Not to mention Brandeis, Douglas, Fortas, Goldberg, Mikva and other prominent liberal jurists.
Mr. Kavanaugh's first sin is to work for President Bush as White House staff secretary, a little known but powerful position. Withdrawn Supreme Court nominee Harriet Miers once held this job, whose duties include deciding which pieces of paper get sent into the Oval Office. Defeating Mr. Kavanaugh would be a personal slap in the face to the President.
His past transgressions include working for Alberto Gonzales, when he was White House Counsel. This has given an opening to Senator Patrick Leahy, the ranking Democrat on Judiciary, to demand a second hearing for Mr. Kavanaugh on grounds that he wants to explore the nominee's possible role in the Administration's secret wiretapping program. The White House says that he did not play an active role in those deliberations, but even if he did, so what? The President approved these wiretaps and key Members of Congress were well aware of them.
We suspect that what really makes Mr. Kavanaugh radioactive to Democrats is his work on the staff of Whitewater Independent Counsel Kenneth Starr. Never mind that Mr. Starr's mandate to cover the Paula Jones episode was issued by President Clinton's own Attorney General, Janet Reno. And never mind that the special counsel probe was originally requested by Mr. Clinton himself and urged on by liberals in Congress and the media. Now they apparently want to disqualify Mr. Kavanaugh for executing an assignment they demanded be done.
Mr. Kavanaugh also participated in the Florida recount in 2000--which prominent lawyer didn't, on either side?--and he represented Elian Gonzalez pro bono (at the behest of the Democratic mayor of Miami) in the Cuban boy's appeal to the Supreme Court after an appeals court upheld his deportation order.
As for a filibuster, it's possible Democrats will hold fire on Mr. Kavanaugh in favor of filibustering Fourth Circuit nominee Terrence Boyle, whom Senate Majority Leader Bill Frist also wants to vote on by Memorial Day. Mr. Boyle, a federal judge in North Carolina, has been waiting even longer than Mr. Kavanaugh. He was in Mr. Bush's first group of nominees announced on May 9, 2001.
In either case, Republicans would then have the chance to resort to the "nuclear option" of changing Senate rules to do away with the filibuster against judicial nominees. A majority of 51 votes would be enough to confirm, which is what the Constitution's advice and consent power anticipates. A filibuster fight would be exactly the sort of political battle Republicans need to energize conservative voters after their recent months of despond. Senator Schumer, make Bill Frist's day.
More likely is the Samuel Alito scenario. Senators John Kerry and Ted Kennedy tried to rally (or faked) a Democratic filibuster against Mr. Alito's Supreme Court nomination, but the full Senate confirmed him by 58-42. Though the ultimate 42 "no" votes would have been enough to sustain a filibuster (only 41 votes are needed to prevent cloture), enough Democrats decided to "split" their votes by opposing the filibuster and then opposing the nominee. As long as Republicans hold together, Mr. Kavanaugh should be sworn in and sitting on the bench by summer.
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