Reading Room

Get Bush judicial nominees on the bench – now
by William Murchison
Dallas Morning News
March 13, 2005

All the gauzy talk of judicial filibusters, "nuclear options" and such like is about to take on flesh and dwell among us. This, due to the U.S. Supreme Court's recent reminder of how deeply it matters who sits on the federal bench, interpreting our laws.

When five unelected justices, citing sociology and international opinion, overturn (Roper vs. Simmons) the laws of 20 states regarding capital punishment for juveniles, well, my friends, that's nuclear. The faster we scurry from our bomb shelters and launch a second strike, the brighter grow prospects for sanity.

A little lubricant here, for rusted memories.

The "nuclear option" is political shorthand for a parliamentary maneuver meant to prevent Democrats from continuing to filibuster the Bush administration's judicial choices. The politicians call it nuclear because once it's put in play, Capitol Hill warfare will escalate fiercely. But war is going on right now. Surely we see that?

Among the blue-state intelligentsia, there was high-fiving over the court's narrow vote to disallow the execution of a fine upstanding Missouri youth who, at 17, had – maybe just a tad impetuously – broken into a woman's house, kidnapped her, then thrown her off a bridge, expecting her to drown. She failed to disappoint him.

The five justices who voted to prolong this worthy youth's existence – Anthony Kennedy, David Souter, John Paul Stevens, Stephen Breyer and Ruth Bader Ginsberg – cited not just "evolving standards of decency," as interpreted by the five themselves, but also the United States' seeming moral isolation in the world on account of letting states execute 17-year-old offenders.

Now, if the question of a higher-age floor – 18 years, say – for capital punishment prospects were to be argued in any ordinary forum, we could expect to hear respectable arguments on both sides. A slim majority of the Supreme Court, as increasingly is the case (see the 2003 decision eradicating Texas' sodomy law), saw no reason the nation should debate what was clear in the justices' own minds, namely, the need for a major social change – one the outside world could applaud.

Here is where we circle back to the matter of coming Senate battles over confirming jurists the Bush White House believes less inclined to dictatorship than, say, the five members of the Roper vs. Simmons majority.

Maybe the Bush nominees would pan out, maybe they wouldn't. Justice Kennedy, a Ronald Reagan appointee and friend, was the author of and deciding vote for this judicial atrocity. ("Gosh" – as they exclaim in Washington, regarding reformed conservatives – "How he's grown.") Bush 41 put on the court Justice Souter, who rarely if ever sides with the court's three main opponents of judicial megalomania – Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Up to now, the fracas has concerned Democratic unwillingness to allow a number of Bush 43's conservative judicial choices so much as an up-or-down vote. Imagine in what mood a Rehnquist resignation, when it comes – and it could be any time, given the chief's throat cancer – will find the Senate Democrats. The chief justiceship is the brass ring on the merry-go-round.

Sigh. It shouldn't be that way. But it is, given the imperial power modern justices have assumed over our affairs.

We can have all the Roper vs. Simmons decisions we like – the world invited by our high court to sit in judgment on America. Or the White House and the Senate's sometimes wimpy GOP leaders can make known that the confirmation of nonimperial judges is a nonnegotiable matter, starting now. Want war? Just try stalling a qualified judicial nominee.

That's what the Bushies not only can but should say – loudly, insistently.

William Murchison holds the post of Radford Distinguished Professor at Baylor University. His e-mail address is wmurchison@dallasnews.com.