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PostWatch
 

Friday, January 10, 2003
 
1:35 PM

E.J. Dionne: The Dismal Science. His column today on the Pickering nomination is soaked in beltway cynicism.

You have to hand it to President Bush and his judge-pickers.

They understand the power of the judiciary to shape American political life for years to come. They brazenly use their executive authority to fill the courts with their allies.


Brazenly use their executive authority? The executive branch is supposed to appoint federal judges, who do not float down from heaven but rather embody legal and political principles that had darn well better reflect the views of an elected Administration. That's kind of the point.

The renominations of Justice Priscilla Owen of the Texas Supreme Court and, especially, of Judge Charles W. Pickering Sr. of Mississippi caused consternation and even a bit of shock. Pickering had been the personal choice of former Senate Republican leader Trent Lott, who was pushed out of his job after his tribute to Strom Thurmond's 1948 segregationist presidential candidacy. Pickering was hurt by his handling of the sentencing in a cross-burning case and his past views on civil rights.

Republicans argue that the cross-burning issue was invoked unfairly, because Pickering was simply seeking equity in the sentencing of the case's three defendants. But Pickering's tendency to use court opinions for disquisitions on public issues suggested a less than judicial temperament.


Fortunately, liberal judges never, ever use court opinions for disquisitions on public issues. As a result, liberal judges are universally recognized for their fairness and for recoiling in horror from the taint of judicial activism.

The real issue here involves not the personal characteristics of nominees -- there are plenty of smart conservatives on Bush's list -- but a political struggle to create an increasingly activist conservative bench. "They realized that if they took over the one unelected part of the government, they could govern for a generation," says Sen. Charles E. Schumer, a New York Democrat.

If only conservatives had realized that 30 years ago, before equal justice under the law was undermined and in some cases replaced by identity politics.

Judicial appointments are not like patronage jobs in the Commerce Department. Judges sit for life. A president who says he wants a more decorous process won't get it if he refuses to acknowledge that the road to depoliticizing the judiciary will be paved by consultation on appointments. Playing partisan politics and calling it high principle won't work anymore.

Dionne also notes Democrat shock over the re-nominations. It's real simple, folks. Democrats smeared people like Pickering and are attemtping to do it all over again, partly because Pickering was Lott's choice. The Bush Administration thought that was shameful then and guess what, it's still shameful four months later.



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