Yesterday I commented on Mort KondrackeÂ’s column on the filibuster of nominees to the appellate courts. I mentioned the views of Jonathan Turley, a liberal scholar of the law and judiciary, which Kondracke himself had referenced. Well, what should appear in my local paper this morning but a column on the subject by Turley himself?

The decision to nuke or not to nuke has obscured the real issue: Are the Republican nominees qualified or are they flat-Earth idiots? As a pro-choice social liberal, I didn't find much reason to like these nominees. However, I also found little basis for a filibuster in most cases. Indeed, for senators not eager to trigger mutually assured destruction, there is room for compromise.

Turley then goes on to analyze each of the judges that the Democrats label extremists who are unfit for the bench – or who they object to because a Republican president is not deferring to their home state Democrat senators. He indicates that the judges in question are generally well-qualified and within the mainstream of the law. In most of the cases he shows that the criticism is either wrong or insignificant. So strong are his objections to the use of the filibuster that he says, “For nine of the Republican nominees, Democratic opposition looks as principled as a drive-by shooting.”

Only three of the nominees present a problem for Turley.

Democrats are on good ground in filibustering William J. Haynes II, who signed a memo that appeared to justify torture of POWs and suggest that the president could override federal law — an extreme view that preceded abuses at Abu Ghraib and Guantanamo.

Then there's 9th Circuit nominee William G. Myers III, a former mining lobbyist who, as an Interior Department official, advocated extreme-right positions on Native American and environmental issues, often in contravention of accepted law. Given the centrality of such issues to the 9th Circuit, there is reason to bar his confirmation.

Finally, there is the closer case of Priscilla R. Owen. She has a "well-qualified" ABA rating, but she is also indelibly marked by a prior public rebuke. Attorney General Alberto R. Gonzales, her colleague on the Texas Supreme Court, said she engaged in "an unconscionable act of judicial activism" in restricting a minor's access to an abortion. That and other charges of activism leave Owen damaged goods for confirmation.

Of these three, I agree on one – the Haynes nomination. It is not that I think that Haynes was necessarily wrong in his position, because I don’t. But at this time, I think the issue is one that is too radioactive. Haynes might be a good nominee in a couple of years – just not now.

I’m not sure about Myers. Do his political positions prevent him from being an acceptable candidate for the judiciary – or at least for the appellate level, beyond which most cases never go? Perhaps. That he lacks experience on a lower court troubles me, because it prevents determining if Myers has an appropriate judicial temperament. I would not be troubled by his confirmation, but would not be troubled by his rejection, either. I just don't see his nomination as a hill worth dying for.

And then there is Priscilla Owens, on whom I steadfastly disagree with Turley. She has been a good justice here in Texas, and while I have disagreed with her position on a number of issues, I have accepted the reasonableness of her rulings. Turley wants to write her off because of an ad hominem attack by one of hercolleagues, the current attorney general. Frankly, I find that to be a pretty weak argument, given that the same statement could have been made against then-Justice Alberto Gonzales in the same case. More to the point, the ABA rated her well-qualified (the alleged “gold standard” for nominees, according to Senate Democrats at the time of Owens' original nomination) and the people of Texas have overwhelmingly reelected her to the bench since that case was decided. Those two facts, taken together, show that she is not an extremist, and is eminently qualified for the federal appellate bench.

Overall, however, I agree with Turley. Now, are there enough honest liberals -- more to the point, enough honest liberals in the Senate -- for such clear thinking to carry the day?

Posted by: Greg at 01:10 PM | Comments (2) | Add Comment
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