July 08, 2005

Ed Koch on Judicial Nominations

While browsing realclearpolitics.com, I came across an interesting column from Democrat and former Mayor Ed Koch:
In my view, the President's candidate should be confirmed by the Senate, provided the President's party is in the majority and the candidate is of good character and professionally qualified. The positions of the candidate on hot button issues, e.g., abortion, gay rights, death penalty, environment, etc., so long as those positions are within the mainstream of the President's party, should not bar the candidate from being confirmed. No one opposing the President's pick on key issues should be expected to support the candidate, but preventing an ultimate vote on the nomination should not be tolerated. Most, if not all, Senators acknowledge that they may not ask a nominee for the office how they would decide a particular case, heretofore decided by the Supreme Court, or one created hypothetically to determine the philosophical position of the nominee on a future court decision.

The Republican Party -- the President's party -- is quite conservative at its core. Therefore, the President will likely select a candidate who will please that conservative center. Were the Democratic Party in the majority, its vote could determine the fate of the President's candidate and therefore, it would have the opportunity and right to influence the President’s selection process. The Republican majority in Congress will limit the Democrats’ ability to influence that process.
I agree with Ed Koch on this issue. It is not because I am a Bush supporter. Quite frankly, on many of the "hot button" issues (for example, prayer in schools, 2nd Amendment, abortion), my views sharply diverge from Bush's views.

However, I strongly believe that, under our Constitution, the President is given the right to nominate whoever he believes to be qualified. If Bush believes that the Court needs another Antonin Scalia or Clarence Thomas, then that is his right. This being said, I understand that any such nomination should go the Senate so that it may exercise its duties to "advise and consent" to any such appointment. It is merely part of "checks and balances". If Congress believes that the particular candidate is not qualified, then certainly, they can withhold such consent.

The problem becomes when the opposition party decides to filibuster the nomination (as many Democrats are currently threatening). This, in my opinion, subverts the Constitutional process as the "advice and consent" never occurs because the judicial candidate never gets to a vote. This is wrong. It essentially concedes that the Democrats do not have the votes to block the nomination. Rather than give the judicial candidate a chance for an up or down vote that they know they will lose, they filibuster for the sole purpose of "persuading" the President to choose someone else. By doing so, the Democrats essentially change the voting requirements for a confirmation from a simple majority of senators (51) to 60 senators (the number of senators required to end a filibuster).

Put in very simple terms: the impending filibuster tactics with respect to judicial nominations is no different than a 10 year old kid who is losing a game of basketball. Rather than lose, the kid just stops the game and takes his ball home.

Do I believe in the "nuclear" option. No. From my standpoint, it should not be necessary as the Democrats should grow up and understand one thing: they lost the election.

The sound bites we are hearing from the Democratic Party are that the president should nominate "a consensus mainstream nominee". Would the Democrats have done the same if John Kerry was elected or would they have nominated a liberal?? We all know the answer. They had every opportunity to show the American public why they should be trusted with governing our country and the majority of the American public chose the Republican Party. Now, if the Democrats had won, then they would have been able to choose who to nominate...
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