THE POLITICS OF JUDICIAL APPOINTMENTS

I finally got around to the Jeffrey Rosen piece in the Sunday Times. I agree with him on the absurdity of reducing every appellate nomination to a debate over the merits of Roe v. Wade. However, there are two major points that I think he fails to bring out. First off, he implies that the legislature is the sole villian in the partisan gridlock that has emerged in recent decades. But just as much fault must lie with the executive branch stubbornly asserting its right to pack the court with ideological fellow travellers during periods of divided government. It's not 1936 - neither Clinton nor Bush have a mandate to radically change the makeup of the federal bench. If Bush really wanted to fill the empty judicial slots he could always compromise by nominating qualified candidates from both parties.

Second, Rosen fails to address the particular context of judicial appointments after Bush v. Gore. The great check on the judicial branch is the appointments process - judges have the power to interpret laws in counter-majoritarian fashion, but the political branches have the right to respond by appointing successors with more majoritarian views. However, in Bush v. Gore, the five-member conservative majority of the court in effect chose their sucessors, ensuring that if they retired in the next four years, they would be replaced by a judge of similar ideological bent. Sentate Democrats, therefore, would be justified in blocking any appointee to the High Court during this Bush Administration, in service of keeping this vital check on judicial power.

So there's a simple solution to Rosen's sad story of the two qualified appointees from different parties who were casulties of the partisan appointments process - they should be nominated and confirmed - together.