ith their unprecedented filibuster of Miguel Estrada, Priscilla Owen, and others, Senate Democrats have once again raised the ante in the war over the present and future of the judiciary. The New York Times is opposing yet another Bush appointee, Carolyn Kuhl. The Washington Post has come out against yet another, Bill Pryor. And the list goes on.
The one real power Republicans have over the Democrats in this fight is the recess-appointment power. . . Recess appointments have an impeccable historical pedigree; beginning with George Washington, presidents have made recess appointments to Article III courts. Since the Founding there have been more than 300 recess appointments of judges. President Eisenhower and Kennedy made 53 such appointments between them.
The main problem with a recess strategy is that it makes the GOP's best nominees temporary second-class judges. Not only would this fail to realign the judiciary, but it would deter the most promising judicial candidates from accepting. For this reason, recess appointments, as currently conceived, are not a credible threat. Well, until you add a twist.
President Bush could threaten to line judicial openings with committed conservative and libertarian recess appointees, people who are too old, too young, too smart, too conservative, or too burned by previous failed nominations to ever be considered for ordinary judicial appointments.
At worst, the American people will finally find out if the world is a better or worse place if the judiciary is dominated by libertarians and conservatives. If the results are not as catastrophic as the Democrats always warn — the way they do about private Social Security accounts and school vouchers — maybe some of these recess judges might even get confirmed in the end. Then the judiciary will be revolutionized, in less time than the normal confirmation process would ever allow. Can the Senate Democrats and their activist cohorts afford to take that chance?
This is a great idea. The Democrats have decided that the Republicans need a supermajority to conform their judges, so why not give the Democrats a reason to allow a vote?
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