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The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
-Ronald Reagan

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Friday, September 20, 2002
Confirmation Class

There is an interesting debate among liberal bloggers over whether McConnell should be conformed for the 10th Circuit. Nathan Newman is emphatically opposed along with Yglesias. Jeff Cooper says it's the wrong fight, and Sam Heldman seems to be having trouble deciding.

I would lean towards opposing, although I believe in the end the nomination will go through. The principal reason is that I simply think Democrats can and should fight on judicial nominations, and given that 77 have been approved and only 2 rejected, it seems that on this issue as on most others Congressional Democrats have been more guilty of rolling over for Bush than excessive partisanship.

I don't doubt that Mr McConnell is highly qualified, but that is not, after all, why he was nominated. Many highly qualified people haven't received even the slightest consideration from this President and won't because they don't fit the rather narrow ideological requirements he places on potential nominees. Given that he was nominated for political reasons, his strong qualifications being more a bonus than a determining factor, I see no plausible reason why a confirmation vote shouldn't hinge on the same grounds.

The arguments against such considerations seem dishonest. There was much wailing and gnashing of teeth among conservatives when the nomination of Priscilla Owens was voted down, and it was described as an unprecedented event. While I believe it is true that the Republican Senate in the Clinton years didn't actually reject any nominees other than Whyte, the act of giving a nominee an up or down vote seems far more respectful to both the nominee and the process than the preferred tactic from the Clinton years of letting nominations gather dust for years on end, refusing to act simply because some Senator didn't like the nominee but nobody could find a plausible reason to oppose. So it isn't at all an increase in the partisanship surrounding nominations, it's just an increase in the honesty employed to gain partisan ends.

The argument that there is an urgent need to approve judges because of the many current vacancies is even weaker. Setting aside the fact that the people arguing this point tend to be the very people who are responsible for all those vacancies, this quite simply isn't a good government issue. If that was the real concern of Bush and his supporters, they could solve their problems today: along with Bush's nominations, renominate a group of Clinton nominees who are known to have been well qualified. This easy compromise would make it possible to eliminate the excessive number of vacancies almost immediately. The reason they don't take or even consider this step is that their objective isn't to ensure the smooth running of the federal court system, it's to pack it with right wing ideologues.