The Peter Principles: A justice for all

By PETER ROFF, United Press International

WASHINGTON, Feb. 26 (UPI) -- With the nation poised on the brink of war, it can perhaps be forgiven that the American people have paid little attention to recent events on the floor of the U.S. Senate. There are few things as critical in the life of a nation as issues of peace or war. The ongoing march toward U.S. or international military action against Iraq has, therefore and correctly, consumed the interest of most people.

Nevertheless, there are other issues of importance before the Senate. One of them threatens to compromise the integrity of the constitutional process and is, therefore, also worthy of attention.


Over the past two decades, the confirmation process for federal judicial nominees has grown increasingly contentious. Beginning, as is generally agreed, with the nomination of an otherwise qualified Judge Robert H. Bork to a vacant seat on the U.S. Supreme Court, Democrats and Republicans have been at loggerheads over who shall sit on the federal bench.


Bork, a conservative who generally held to a narrow interpretation of the U.S. Constitution, was anathema to many liberals. They feared he could be the deciding vote in favor of rolling back many of the gains they achieved in the 1970s and 1980s through judicial decisions. The nomination was defeated and the political lines were drawn.

There have been other pitched battles over other nominees in the years since. Few were as heated as the one over Bork. Nominations made by Republican presidents have died owing to the will of Senate Democrats and vice versa as the confirmation process has ground to a halt.

Shortly after taking office in 2001, President George W. Bush introduced his first round of judicial nominees to the nation. Several were confirmed quickly but most were held over without a hearing after the Democrats took control of the Senate chamber in mid-session.

The objection is not their fitness to serve or their competence; it is their ideology.

After the Democrats took control of the Senate in 2001, New York Sen. Chuck Schumer, a liberal Democrat who serves on the Senate Judiciary Committee, said the bias against ideology had led to an "escalating war of gotcha politics over nominations that has warped the confirmation process and harmed the Senate's reputation.


"It is high time we returned to a more open and rational consideration of ideology when we review nominees ... And let's be fair to the nominees the president picks," he said in June 2001.

Now Schumer is one of the leaders of the filibuster to prevent a vote on the president's nomination of Miguel Estrada to the federal bench.

Estrada, a Honduran immigrant, is an attorney who worked for the U.S. Solicitor General in the first Bush and Clinton administrations. He would be the first Latino to serve on the U.S. Court of Appeals for the D.C. Circuit, a training ground for future U.S. Supreme Court justices.

Schumer and others, who claim they do not know enough about his views to make a decision, are trying to stop the full Senate from voting on the nomination -- even though there are 55 senators pledged to vote for confirmation.

Schumer told The Washington Post's Mike Allen he believed that "just rubber-stamping the president's ideological choices wasn't what the Founding Fathers intended."

"This is the White House's insistence," Schumer said. "If the Senate were left to its own devices, we could come up with compromise candidates who would be conservative but not extreme."


But this flies in the face of what the founders believed. Alexander Hamilton, writing in Federal 66, said in part: "It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose -- they can only ratify or reject the choice of the President."

The role of the Senate is not, as Schumer seems to assert, to help the president choose his nominees for executive and judicial branch positions. It is, as Hamilton wrote, to render their approval or disapproval of the choice.

A small group of senators, including Schumer, are trying to stop the majority of their colleagues from fulfilling the obligation the founders left to them.

This is an important fight, one that goes to the core of the separation of powers upon which the federal government was set up. The leaders of the filibusters are, for partisan and ideological reasons, encroaching on the legitimate, constitutionally prescribed power of the executive. This is a fight to which the American people should pay close attention -- even though it seems there are more pressing issues to worry about.


(The Peter Principles is a regular column on politics, culture and the media by UPI political writer Peter Roff.)

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