October 30, 2003

Let the Judges Defend Themselves

Like most consensual political systems, the US has a lot of internal rules that operate by unwritten agreement. There is no formal obligation to do a great many things. These rules often arise from the fact that peaceful though we all are, we all hold potential daggers to each others throats. We all have the power to make things thoroughly unpleasant for a great many other people.

The Senate runs very much by these unwritten codes and one of the less obvious exchanges is the idea that judicial nominees will keep their mouths shut in exchange for Senators acting as something of a nonpartisan employee search committee ratifying the administration's choice unless there is some objective defect in the judge which would make him bad for the country. In formal language, this is called advise and consent. Oh well, so much for that.

In the ever increasing bad faith of the judicial nominating process, one of the daggers that has not been drawn is the increasingly ridiculous restriction on the free speech of the nominees. In the two years that Miguel Estrada was pummeled by liberal Senators and liberal interest groups, he was not permitted to defend himself other than by answering direct questions put to him by Senators. In a system that at least maintains a pretense of fairness, this is a reasonable restriction. Judges normally should be seen as dispassionate arbiters. But there is a line past which it is not only personally cruel but downright injurious to the health of the Republic for the best defender of a nominee's record, the nominee himself, to be barred from responding to scurrilous charges that he's not black enough, not hispanic enough, or is otherwise unacceptable to the US mainstream even when he wrote or voted with the majority on a particular case.

There is all sorts of talk about a 'nuclear option' to change the rules of the Senate and kill the judicial filibuster. Before going nuclear on the Senate's rules, might it not serve the process better to try free speech?

Posted by TMLutas at October 30, 2003 11:39 AM