Court Controversy: Parties Argue about who Should Judge

Whoever said there’s little difference between the political parties hasn’t heard much about judicial nominations.

Democrats and Republicans often have very different ideas about whom to appoint to the federal bench. Currently, 47 judicial nominations are stalled by partisanship, and Republicans are labeling 23 of them “judicial emergencies." A "judicial emergency" amounts to a huge backlog of cases, so many pressing matters are left unresolved for months or even years.

While both sides want judgeships to be filled and the judiciary to be operating at full capacity, neither side wants a judge with stark ideological differences on the federal bench for life.

Appointing Controversy

During the Bush administration, Democrats have helped to confirm 173 nominees. They have also blocked 6 nominations by filibuster, a tactic used to delay a vote. Republicans could not come up with the 60 votes needed to overcome the filibusters, so the strategy temporarily kept William H. Pryor, Jr. and Charles W. Pickering from taking seats in federal appeals courts, which are more powerful than all but the Supreme Court.

Democrats objected to Pryor and Pickering because they think their philosophies are far outside the mainstream. Pryor advocates for greater Christian influence in government, and Pickering at one time supported racial segregation in the South. Both are against a woman’s right to choose.

On February 20, 2004, Bush decided to exercise a little-used presidential power: the recess appointment. It’s just as it sounds -- Bush appointed Pryor and Pickering during Congressional recess. As to be expected, Democrats were enraged and charged Bush with violating the Constitution.

On March 26, 2004, minority leader Tom Daschle (D-SD) issued a warning to the White House: "We will continue to cooperate in the confirmation of federal judges, but only if the White House gives the assurance that it will no longer abuse the process." Republicans took the statement to be a veiled threat to block all nominations, though Democratic aides told The New York Times that the statement was “carefully worded" so as not to be a clear promise to block nominations.

Constitutional?

Technically, the president does have the right to appoint judges while Congress is on recess. But recess appointments are not for life; the appointees serve only until the end of the next session of Congress. This means that Pryor will serve until the end of 2005, while Pickering, who was appointed just before the Congressional session, will serve until fall 2004. The impermanence of a recess nomination reveals the founding fathers’ intentions to avoid presidential abuse of power. The president cannot simply go over the head of the Congress and create a judiciary in his image; Congress must participate in the full appointment process.

Democrats argue that Bush is abusing his power because the Senate has already rejected Pryor and Pickering. Republicans argue that Democrats are obstructionists - hindering the process for partisan motives. Republicans call the Democrats’ filibusters "unprecedented," though Republicans rejected by vote or procedure 114 of President Clinton’s nominees.

At issue is a fair and efficient judicial nomination process. The Constitution intends for Congress to agree on nominees. That task is made difficult when a nominee has a controversial view on values-based issues, like abortion or prayer in school.

Nominations matter

A contemporary Supreme Court case illustrates how federal court appointees affect our everyday lives:

The Court is currently deciding whether or not to keep the phrase "under God" in the Pledge of Allegiance. On March 24, 2004, Michael Newdow, a doctor and lawyer, argued in front of the Supreme Court that his daughter should not have to refer to God while pledging to the flag in school.

"Under God" was added to the pledge during The Cold War, when Congress desired to make a distinction between the United States and the “Godless Communism" of the USSR.

The case is bound in language, not just religion. The New York Times reports that Justice David H. Souter sees the pledge as a common utterance “so tepid, so diluted, so far, let’s say, from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar." From this point of view, the issue is not necessarily a matter of separation of church and state.

While the Pledge of Allegiance may seem like a small issue in the grand scheme of things, the Court’s characterization of the pledge may have a big impact. The justices’ decision will help to define our nation’s public relationship with God.

The personal is political

Do you think children in public school should refer to God in the pledge? Do you think that a nominee with values outside of the mainstream should be appointed to federal court? What makes a good judge? Discuss this issue with other WomenMatter readers in one of our online forums. Stay up-to-date on this Life Issue by signing up for an e alert. And when you’re ready, contact your representatives and let them know what you think.

Posted on: 4/7/2004