In a Wall Street Journal op-ed last week, Kimberly A. Strassel reflected on President Bush’s legacy of judicial nominations, commending the president for “liv[ing] up to his campaign promises to change the judiciary with distinguished conservative jurists.” This administration’s “rigorous attention to judicial philosophy” (read: rewarding Federalist Society membership) and “the amount of capital the president plonked into his picks” (read: submitting the same nominees over and over again, despite widespread Senatorial opposition) “helped swing what had been liberal circuits…back toward the conservative side.”
Strassel encouraged the president to solidify his “impressive judicial run” in his last two years in office, urging him to focus particularly on the Fourth Circuit, where many of the challenges to the executive branch’s broad assertion of powers in the war on terror are being heard. Strassel also blamed the Senate for a lack of confirmations thus far in the 110th Congress. But this point is without merit: two circuit judges (Norman Randy Smith and Thomas Hardiman) have already been confirmed, a third (Debra Livingston) has had a hearing, two Sixth Circuit nominees were only recently submitted, and almost all the rest of the appellate level vacancies are still awaiting nominations from the president (not to mention 13 district court judges confirmed). We thought it went without saying that the Senate cannot hold confirmation hearings without nominees. Apparently Strassel attributes the continuing judicial emergency in the Sixth Circuit to Senate “obstructionism,” too. It must have slipped her mind that Raymond Kethledge and Stephen Murphy’s names were mysteriously missing from the list of re-nominations the president sent to the Senate in January, likely because of continuing negotiations with Senator Brownback (R-KS), who had placed a unilateral hold on another Michigan nominee.
Those misunderstandings aside, we agree with Strassel that the Bush administration’s largely successful campaign to move the courts to the right has already inspired 2008 presidential aspirants to discuss the importance of judicial nominees—in particular, candidates for the Republican nomination have paid obeisance to the hard right's agenda on judges. We only hope that the many voices out there that are troubled by the rightward tilt of the judiciary will let the candidates know their views as well.