Discarding ‘Embryonic’ Judges     6/2/2005
By Mario Diaz

A new day for the judicial confirmation process.

With the announced compromise reached by 14 Democrats and Republicans, a new process is born for the confirmation of judges: the deal. If the deal sticks, from now on, every President will need to nominate “throw-aways.” Like fertility clinics, presidents will be persuaded to produce an excess number of candidates—as if they were embryos—that he will inevitably have to discard to increase the chance of other judges getting birthed, or confirmed.

But we should not be surprised; this is what politics is all about nowadays. Instead of character and principle, stature, egos and resentments rule the day.

The deal involves the Democrats allowing an up or down vote for the nominations of Justice Pricilla Owens, Justice Janice Rogers Brown and William Pryor while Republicans agree that two others, William Myers and Henry Saad, may still be blocked.

Americans are not likely to forget the hypocrisy in the next election. What happened to the nominees being extremists? The magical deal must have transformed them into good nominees. That’s “extraordinary.”

Sen. Charles Schumer (D-New York) said, “There is no question that when you look up judicial activist in the dictionary, you see a picture of Priscilla Owen.” And, “She is immoderate. If there was ever a judge who would substitute her views for the law, it is Judge Owen.” Senate Minority Leader Harry Reid (D-Nevada) said regarding these nominees: “When Americans think of scary persons in dark robes they should be thinking of Darth Vader, not Republican choices for judges.” And Sen. Edward Kennedy (D-Massachusetts) called Justice Owen “a candidate on the far fringes of legal thinking.”

But now they have a compromise and Justice Owen is not extreme. All but 17 Democrats voted to end debate and two of them voted to confirm her. Forget all the personal attacks on Justice Janice Rogers Brown and William Pryor; they too can have an up-or-down vote. What this really shows is what we’ve said all along: These are well-qualified, outstanding nominees and the liberal Democrats had other political motives for their filibuster. Principle is not a word to be found in their dictionary.

We also have to point out that seven Republican senators sacrificed the core principles they had expounded. These senators fought hard to get the president’s nominees confirmed and combat the attacks from the left, yet the seven compromisers saved three and left all future nominees vulnerable to being discarded. Why leave William Myers and Henry Saad to the wolves? Why leave them vulnerable to filibusters as “extremists”?

This is, of course, great encouragement for future candidates to accept nominations. They can be nominated, have their character and reputation trashed, and then be discarded so that other nominees get a vote.

Majority Leader Bill Frist (R-Tennessee) said the deal “falls short. It has some good news, and has some disappointing news, and will require careful monitoring.” Indeed it does. The deal falls short of what the majority of Americans, Democrats and Republicans alike, want: for the President to nominate well-qualified judicial candidates to federal courts, and for the Senate to give “advice and consent” by allowing every nominee an up or down vote. This is something we “simple Americans” like to call “upholding the Constitution.”

For more on the judicial crisis, click here.

Mario Diaz is CWA's multimedia production engineer and a student at Catholic University School of Law.

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