Last week, John W. Dean urged the Senate to take its “advise and consent” role seriously, especially if another Supreme Court vacancy occurs before 2009 ( hurry, knock on something made of wood!).
Taking a historical perspective, Dean pointed out that lame duck presidents—like John Adams and Lyndon Johnson—have tried to skew the highest court using eleventh-hour appointments but have repeatedly encountered stiff resistance from congressional leaders of the other party. We wholeheartedly agree that “a lame duck president’s [attempt at] packing the federal courts with judges who will further his governing philosophy” is “by definition, picking a fight.” However, Dean’s exhortations to Senate leaders to “take the initiative” should not be limited to rejecting Supreme Court nominees “who might drastically change the disposition of the Supreme Court, by giving it a solid conservative majority.” Given that the Supreme Court’s docket has been continuously shrinking, more and more crucial decisions are being made at the circuit court level. So although the thought of another Bush II Supreme Court nominee is disturbing, the spectre of ideologue federal judges at any level should be sufficient to scare Congress into fulfilling its constitutional obligation—to ensure that the judiciary is fair and independent.