December 04, 2008

Obama’s Judges & the Bush Standard

Last Saturday, a Wall Street Journal editorial suggested that Barack Obama “renominate some of President Bush's highly qualified judicial picks who have been left to languish for years.” It would be a “good first gesture,” the Journal said, if Obama wants to “end[] the political war over judicial nominations” and “allay the concern that [he] lacks a constitutional standard for judicial selection.” As the editorial noted, “[t]here’s plenty of precedent.” In the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. During the Clinton Administration, Gregory was never confirmed, while Parker was confirmed to a lower court.

It remains to be seen whether President Obama will meet or exceed the Bush Standard by naming two or more of the current president’s judicial nominees to the appeals courts. But the Left apparently fears that he will. When it comes to judicial nominations, the surest way to know what the Left is worrying about is to look at what the Alliance for Justice (AFJ) and People for the American Way are railing against. Hence, eyebrows were raised earlier this week when AFJ responded to the Journal’s suggestion of reciprocation by denouncing it as a bizarre “fantasy.”

Why is AFJ concerned? Probably because reciprocation makes perfect sense for a President who promises to transcend partisanship and has nominated Bush’s Defense Secretary as his own. After two years of criticizing the current president for being too partisan, will Obama want to be seen as less bipartisan on judges than his predecessor?

AFJ chose to focus on the Journal’s mention of Steve Matthews and Bob Conrad as potential reciprocal nominees, presumably because the organization has already invested a lot in demonizing these two impressive Fourth Circuit nominees. But neither the Journal’s editors nor anyone else has suggested that Obama can meet the Bush Standard only by appointing Conrad and Matthews.

While the bad news is that Democrats raised the obstruction of judicial nominees to new levels during the last eight years, the good news is that the obstruction left Obama with many nominees to choose from should he decide to meet or exceed the Bush Standard. AFJ will not be able to demonize them all. In fact, some of them were selected by President Bush on the recommendation of Democratic senators.