It appears that the Estrada mess is just the beginning of the battle over judicial nominees. Most of this is part of the radicalization of the abortion debate engendered by the indefensible ruling in Roe vs. Wade 30 years ago. Democrats are unwilling to confirm any judge who might overturn the “constitutional” right to an abortion–which is to say any judge appointed by a Republican president. The Bork fight in 1986 started the current round of nastiness but, with the GOP controlling the White House and the Senate for the first time since 1986, the Democrats now have to resort to the fillibuster to thwart the democratic process.

I see no solution to the problem because the Estrada fight will be the new benchmark. Republicans will use it to justify fillibustering liberal nominees the next time there is a Democrat president, which there will be again one day. The best outcome I can forsee is a system where presidents and the Senate work together to screen nominees ahead of time, resulting in a much blander pool of judges. While this turns 200+ years of tradition on its head, it is consistent with the plain meaning of “Advise and Consent,” which is after all two words. The process as it quickly evolved became merely “Consent.” As it now stands, “Consent” will not be forthcoming for any desirable nominee, which I define as a highly intelligent person with integrity and a well-developed judicial philosophy. Estrada tried to side-step the process by pretending that he’s a dullard who has no thoughts whatsoever on the Constitution. (Umm, abortion? I’ve never considered that issue. Is that important?) A necessary ruse but an idiotic one.

FILED UNDER: Law and the Courts, US Politics,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.