Will Mr. Post-Partisanship Rise to the Occasion?

“America, our work will not be easy. The challenges we face require tough choices, and Democrats as well as Republicans will need to cast off the worn-out ideas and politics of the past.” (Barack Obama, Remarks, Denver, CO, 8/28/08)

Obama's Judges and the Senate
Mitch McConnell lays down some markers.
From the Wall Street Journal:

Bipartisan hope springs eternal, even among Washington lawyers. That was the message at the Federalist Society's annual convention last week. After years of obstruction by Senate Democrats, Minority Leader Mitch McConnell offered President-elect Obama a roadmap for ending the political war over judicial nominations. What Mr. Obama does in his early days in office will reveal a lot about the next four years.

The key, Mr. McConnell explained, is for the new President to govern as he campaigned -- with an eye toward moderation. In 2004, he reminded the audience, the Illinois Senator criticized President Bush's effort to "push a very aggressive agenda that wasn't the way he campaigned." Now we'll see if that was more than political posturing.

A good first gesture would be to renominate some of President Bush's highly qualified judicial picks who have been left to languish for years. Peter Keisler, now nominated to the D.C. Circuit Court of Appeals, is widely considered to have Supreme Court potential. Nominees Steve Matthews and Bob Conrad are strong choices for the Fourth Circuit, allowing the new President to send a signal that he won't play politics with the national security cases that frequently come before that court.

There's plenty of precedent: Mr. Bush made an effort early in his Administration by renominating Clinton judges Roger Gregory and Barrington Parker. Bill Clinton sent up Republican-appointed district judges for appeals court vacancies in the late 1990s, and they were quickly confirmed by the Senate.

Giving the nod to Bush nominees would also help allay the concern that Mr. Obama lacks a constitutional standard for judicial selection. On the campaign trail, the Illinois Senator suggested that one of his criteria for selecting judges would be their "empathy." That's a far cry from judges as impartial arbiters of the law -- and would be the most untethered standard any President has offered for judicial picks. Without a fealty to the Constitution, a judge is able to bend on the emotions of a case.

In picking judges, one test will be how Mr. Obama uses the American Bar Association, the lawyers' group hoping to reclaim a dominant role in judicial vetting. The group lost that privilege during the Bush Administration, when the President noted that the ABA's supposedly nonpartisan "professional" review had devolved into transparent politicking. The ABA has been a force in politicizing the selection of judges since it announced in the 1980s that ideology was a legitimate consideration. In 2001, New York Senator Chuck Schumer formally adopted that standard, which Senate Democrats then used to stymie numerous Bush nominees, all the way to unprecedented judicial filibusters.

Mr. Obama has his own skeletons in this regard, most notably in his 'no' vote on the confirmation of Supreme Court Chief Justice John Roberts. Though Judge Roberts was broadly accepted by Democrats as possessing the qualifications and temperament to make a fine Justice, Mr. Obama explained that he had decided to oppose the nomination because of concerns over his "political" philosophy. He shouldn't be surprised if the GOP invokes the same standard.