April 20, 2005
By Al Knight
Denver Post
The American constitutional system assumes that over time the federal courts will be politically balanced. This balance is to be achieved as a succession of presidents, each reflecting the popular will of the times, appoints judges to the federal bench.
However, a Democratic minority in the U.S. Senate has lately declared war on this well-settled principle and is determined to deny President Bush appointive rights enjoyed by his predecessors. What is especially stunning is that this minority of senators appears willing to ignore the results of last year's election in which the issue of judicial nominees was prominently featured. Not only did Bush win with a larger-than-ever Republican Senate majority, but the Democratic leader who had led the fight against Bush's judicial nominees was himself defeated. Still today, the Democratic minority remains committed to deny 10 of Bush's appellate court nominees an up or down Senate vote.
One of those Democrats is Ken Salazar of Colorado who, during his campaign last year, announced that he favored up or down votes for judicial nominees.
That statement effectively defused the issue and allowed Salazar to picture himself as a plain-spoken moderate. Well, it hasn't taken long for the bloom to come off that rose. Now that he's in office, Salazar sounds like, say, Charles Schumer of New York.
The Colorado senator apparently assumes that state voters have lost their memory cells.
Not long ago, when Senate Minority Leader Harry Reid of Nevada stood on the Capitol steps and announced that he would shut down the business of the U.S. Senate rather than agree to end the filibuster of judges, Salazar was right there with him.
In one sense, Salazar is trying to have it three ways. He says he favors up or down votes on judicial nominees. He says he believes Bush should withdraw his 10 nominations precluding a vote, and he claims he will decide all judicial appointments on a case-by-case basis.
Salazar is hopelessly confused. The clear implication of his campaign statement was that he would not support the use of the filibuster to block judicial nominees. That comment, it is now obvious, was either false or terribly misleading.
He is now doing a dance designed to disguise that fact. Last month, he wrote a letter to President Bush which was largely a smokescreen for his decision to surrender to his party's leaders. Most of the letter is packed with self-serving liberal rhetoric about health care, the budget deficit and transportation, but the lead paragraphs dealt with judicial nominees. Salazar asked the president to withdraw the names of the 10 judges in order to establish "common ground" and begin work on the "most important" issues facing the country.
What is being done to Bush's judicial nominees is not some distraction. It is one of the most important issues facing the country and Salazar can't alter that fact just by prattling on about how important transportation is.
The president didn't pick this fight. In making nominations to the federal bench, he had every expectation that his nominees would be treated fairly and that they would receive an up or down vote. This is especially so since the nominees are, almost by any measure, well-qualified.
Democratic senators can posture all they want and brag that they have confirmed over 200 of Bush's judicial nominees. The fact remains that 10 of the nominees to the nation's highest court have been denied a vote, some for as long as four years. The threatened use of the filibuster promises a vicious future fight over a Supreme Court nominee.
That's the issue that is front and center.
Salazar has chosen a side in this fight that is contrary to his campaign comments and he should not be allowed to duck responsibility for his choice by claiming he will decide these matters on a "case-by-case basis." The only way judicial nominees can be decided on a case-by-case basis is by first establishing the principle that the nominees will, in fact, receive an up-or-down vote.
Salazar says he wants to restore amity in the U.S. Senate - but his actions make it certain there will instead be continued conflict.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post's editorial-page staff. His columns appear on Wednesday.
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