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Michael McConnell, meet Judith McConnell. Or, as their most venomous critics might say, will the highfalutin’ homophobe please come on over and give a big “howdy-do” to the pervert-loving home-wrecker? These two lawyers (no relationship, according to Judith) have something in common besides their last names: Both have been put through the wringer after being tapped for federal judgeships. No doubt, it’s sad to see distinguished jurists smeared in the name of upholding the Constitution. But maybe there’s also something reassuring about it (really). First, a bit more about the unhappy couple. Judith was nominated in 1994 by President Bill Clinton to be a federal district judge in California. Michael was nominated by President George W. Bush last May for a seat on the U.S. Court of Appeals for the 10th Circuit. Michael is one of the country’s pre-eminent constitutional scholars. Now a professor at the University of Utah College of Law, he previously taught law at the University of Chicago, clerked for then-Justice William Brennan Jr., and has received endorsements from across the ideological spectrum. Judith is a widely respected judge who, at the time of her nomination in 1994, had served on the bench of the state superior court in San Diego for 15 years. She had support from the state’s conservative chief justice and was named San Diego’s judge of the year by one group of lawyers in 1991. He has drawn fire for advocating a vigorous role for religion in American public life, and for helping the Boy Scouts of America successfully argue in the Supreme Court that they should be allowed to exclude homosexuals. She was savaged for a 1987 opinion in which she agreed with a 16-year-old boy’s wish to live with his dead father’s gay partner rather than with his mother. Clinton withdrew support for Judith when Senate Republicans opposed her. Bush is still backing Michael, but the Democratic-controlled Senate has yet to schedule a hearing for him. These situations should make all thinking people shiver. We’ve perfected the politics of destruction to the point where we slander the sterling records and distort the complex thinking of those who strive to serve the common good. Shame on us. Right? Not necessarily. The nomination process isn’t pretty. But it still serves a crucial purpose: ensuring that no one branch of government, no one political party, and no one ideology dominates the judiciary. YES, NO, NO, YES Since New Year’s, the news here in Washington has been drawn back to the fight over judicial nominations between the Senate and the president. Republican senators (Orrin Hatch leading the charge) have been beating up on the Democrats for stalling by pointing to what Republicans claim is the small percentage of Bush’s judicial nominees on whom the Senate has voted and the large number of vacancies on the federal bench. At the same time, Democrats (led by Patrick Leahy) have insisted that they confirmed a record number of judges in 2001. All this, of course, follows six years of the reverse — the Senate Republicans obstructing while the Democratic president complained. The statistics, though, cloud the real issue. And that, simply put, is whether the administration backs nominees whom the Senate will approve. The Constitution gives the president the role of playing offense (“he shall nominate … Judges of the supreme court, and … all other Officers of the United States”). And it gives the Senate the job of defense (giving “Advice and Consent”). The historical argument rages over how much power each side should have. On the one hand, Alexander Hamilton stated in “The Federalist No. 66″ that “There will, of course, be no exertion of CHOICE on the part of the Senate.” On the other hand, the Senate rejected one quarter of presidents’ choices for the Supreme Court during the nation’s first 100 years, including one of George Washington’s nominees for chief justice. At this point, the situation can be summarized pretty simply. The president can nominate whatever geniuses or morons he wants. And the Senate (or at least the party in charge of the Senate) can let them rot. It’s a system that demands negotiating — even more so when the two branches are controlled by different parties. That’s especially true for this Senate, with its precarious majority, and this president, with his controversial election. Unfortunately for the McConnells, that’s where the mudslinging comes in. All senators say they want moderate nominees. Whenever they obstruct, they claim that it’s only because the president has sent rabid extremists — or, more often, they simply refuse to move the nominees as others fling the accusations. LISTEN UP, MR. PRESIDENT Harsh as it may be, the rhetoric serves an important role — it signals to the president exactly how much leeway he has. It also tells the president when he needs to sit down and talk to the Senate before going forward. As former Clinton Justice Department official Eleanor Acheson says, some presidents can be very insistent “that this is the choice of the president, that ‘I will reserve to myself the final choice.’ Some presidents have a more soft view of that, namely, they can be pretty easily swayed by a strong pitch made by a senator. And some presidents can do both, depending on who they need to be doing business with when the vacancy arises, and depending on the merits of the candidate. So things can be very varied.” Clinton apparently didn’t have a tin ear — he withdrew nine nominees in the face of opposition. The result? Despite Bob Dole’s claims during the 1996 presidential campaign that Clinton had established a “judicial hall of shame,” an academic study of Clinton’s judges pegged their rulings from the bench as just a bit more liberal than those of Gerald Ford’s judges. And, so far at least, Bush seems to be following suit. Despite the roar of protest that greeted Michael McConnell and a few other Bush nominees (Miguel Estrada and Jeffrey Sutton, in particular), the first batch, at least, of Bush’s nominees was called “more eclectic and conciliatory than most people expected” by The New York Times. And, as Leahy likes to point out, the Senate has responded by confirming 28 judges, more than it approved in the first year of either the Clinton or the first Bush administration. So the more the Senate signals the president by accusing a select few nominees of witchcraft, the more the president gets the message that he needs to consult and compromise with the Senate. The upside is that everyone can take credit for appointing “moderate” judges. As Abner Mikva, former chief judge of the D.C. Circuit, said while serving as Clinton’s White House counsel, “Get a good judge, and he’ll be good for all seasons.” The downside, though, is the risk of creating a judiciary that, though competent, doesn’t shine. As legal commentator Jeffrey Rosen lamented about Clinton’s nominees, “there are few standouts. They are largely a group of soldierly and obscure judges and prosecutors.” And the temptation to nominate such people is strong no matter who’s in the White House. For instance, look at the 11th Circuit. Clinton’s last appointment to that court was Charles Wilson, a former state judge, federal magistrate judge, and U.S. attorney. Bush’s first nominee to the same circuit? William Steele, now a federal magistrate judge in Alabama. There are two ways around this. One is to nominate as many creative, original thinkers as possible who, by consensus, still count as moderates. Clinton’s successful choice of former Yale Law School Dean Guido Calabresi for the 2nd Circuit was along these lines. (Calabresi was confirmed by unanimous consent.) The other solution lies in the sort of quiet confirmation vote that took place last November for another controversial Bush nominee — Edith Brown Clement. Clement is a member of the Federalist Society whom the National Abortion and Reproductive Rights Action League has criticized. Yet the Senate approved her by a vote of 99-0. And for certain confirmable but controversial nominees, Senate opponents could still make their point by letting the fight spill to the floor. The nominee wins — with bruises. This might well happen to Michael McConnell. MODERATION IN MODERATION Which is to say, getting a moderate judiciary does not mean getting a judiciary composed only of moderates. The vote on Judge Clement shows that the Senate knows this. So does a comment by Sen. Charles Schumer in hearings he called last year on the role of ideology in judicial selections. He said, “Having one or even two justices like [Antonin] Scalia and [Clarence] Thomas might be legitimate because it provides the [Supreme] Court with a particular view of constitutional jurisprudence. But having four or five or nine justices like them would skew the Court.” This approach — of approving some novel thinkers mixed in with many more middle-of-the-road judges — has the advantage of keeping the bench stable. At least as important, it respects both the ideological characteristics of judging and the constitutional power of the president. And it opens the way for horse trading: The Senate will approve some Judge Clements if Bush nominates some Clinton choices (as he did with Roger Gregory, whom Clinton had put on the 4th Circuit though a recess appointment) and/or lots of Judge Steeles. Even better, the approach probably makes for good government — at least the best hope for good government we have in this world. As a recent New Yorker profile summarized the views of 7th Circuit Judge Richard Posner on judicial selections: “One individual judge, Posner reasons, will never be able to put aside his personal disgusts and instincts, so the trick is to have lots of different judges whose instincts clash, and hope that, in the end, their views will cancel out in such a way as to approximate fairness.” The result, the New Yorker article conceded, may not be fair to any particular litigant. It might also have noted that the result is not fair to any particular judicial nominee. But that’s the price of living in a diverse society with a government of checks and balances. And it’s the pain of being a McConnell. Evan P. Schultz is associate opinion editor at Legal Times. He can be reached at [email protected]

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