View From a Height
Commentary from the Mile High City
Sunday, June 29, 2003

Ted Kennedy tries to pre-emptively tie the President's hands on a potential Supreme Court nominee in the Washington Post today. He cites a number of instances where the Senate refused to go along with a President's plans for the Court:

  • Jefferson trying to remove a Justice
  • Roosevelt trying to pack the Court
  • Johnson nominating Abe Fortas
  • Nixon nominating a "mediocre" candidate
  • Reagan nominating Bork

Which one of these is not like the others? You get one guess. There is no Constitutional provision for removing a Supreme Court Justice, even when he clearly can't perform his duties (see William O. Douglas). Roosevelt was trying to change the structure, rather than the composition of the Court. Fortas appeared to be corrupt. Carswell claimed that mediocre people needed representation on the Court, too.

Bork, well, Bork they just didn't like. And that's about it. Real Clear Politics has fine quote from Senator Kennedy's own comments about Judge Bork. Bork is one of those rare people who gets to see his name turned into a verb, in this case, a synonym for character assassination.

Leave aside Kennedy's faulty math on Bush judicial appointments.

Kennedy wants Bush to "consult" with the Senate prior to making a nomination, which I'm pretty sure doesn't get done that often, if ever. In any case, it's a recipe for disaster. Richard Brookheiser recalls an instance when Washington, trying to iron out exactly what "advise and consent" meant, went to the Senate with an as-yet-unformed-treaty. The meeting, as all committee meetings are wont to do, immediately got bogged down in procedure, oversight, and tangents. And Washington decided that advise and consent meant approval of something before the Senate, not prior consultation. That was under the best of intentions, with Washington as President.

Here's what happens when Bush calls up Daschle and asks for a pow-wow when Queen Sandra hangs it up. Daschle confers with Schumer and the rest of the Judiciary Democrats and comes up with a list of acceptable names. (Chuck Schumer has already compiled such a list, and told the President to choose from it. Really.) He goes to the White House, and they meet. If the President agrees, we have a Parliamentary system where the President, like the Queen, picks from a list presented to him by the PM. Only in this case, the PM comes from the minority party. If Bush tells Daschle where he can put his list, Daschle walks out to a waiting press corps to explain that despite his best efforts to be conciliatory, the President is just itchin' for a fight. Hell, he might do that no matter whom Bush proposed.

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