- The Washington Times - Wednesday, January 19, 2005

Standing on the terrace of the West Front of the Capitol today, George W. Bush takes the oath of office for a second time, participating in the 55th presidential inaugural ceremony. Ronald Reagan was the first to choose this setting in January 1981. Prior to that, Capitol inaugural ceremonies took place on the East Front.

President-elect Reagan wanted more than a change in venue. The traditional location was constrained by the Supreme Court less than a block to the east. The West Front allowed the throng of guests and supporters to fill in far down the Mall toward the Lincoln Memorial.

But Mr. Reagan also used the new location to symbolize other changes in the wind. The federal government must “work with us, not over us … and stand by our side, not on our back,” he said in his 1981 inaugural address.

As President Bush begins his second term today, change, again, is in the frigid January air. And one place it’s sorely needed is the way the Senate confirms judicial nominations. Despite recent discussion about updating Senate rules to accommodate bogged-down judicial nominees, there are two related areas that require a new approach: the level of involvement of outside groups, like the business community; and how the White House mobilizes these allies.

In a February 2003 column, “Hanging with Clay, Calhoun and Webster,” I argued the corporate community was noticeably absent in the halls of Congress advocating for conservative, pro-business judges and needed to take a more active role in the confirmation process.

Michael Greve of the American Enterprise Institute agrees. Writing in the Jan. 31 National Review, he argues, “Active, energetic business support for embattled, highly qualified nominees would help stiffen wavering senators’ backs and break the sure-to-come filibusters. Even so, businessmen continue to maintain their traditional standoffishness on judicial appointments. They haven’t realized ? yet ? that this is nothing less than a gentle form of corporate suicide.” Mr. Greve says corporate leaders erroneously believe anything that needs “fixing” can be accomplished by Congress or an administrative agency. Yet like lawmakers and regulators, courts can create havoc with balance sheets and planning.

Still, many corporate leaders view the judicial confirmation battles as alien turf, a terrain occupied by more ideological or partisan interest groups. Mr. Greve thinks this is a mistake. “[B]usiness, and the country would all benefit from the appointment of justices who are aware of both the importance and realities of business litigation.” Costly and frivolous class-action suits against business are a prime example. Yet, according to Mr. Greve, “persistent failure to raise those questions in the course of judicial nomination battles sends a powerful signal both to the appointees and to sitting justices that nothing is expected of them in that arena. Small wonder they behave accordingly.” Business leaders should take these admonitions seriously and ratchet up their activism.

But in order to accomplish Mr. Greve’s goal, another change is necessary. Inside the White House, judicial confirmations are treated differently than the rest of the president’s legislative agenda. This is not unique to the Bush White House. Except for rare, high-profile exceptions, most presidents don’t consider “confirming nominees” as one of their top legislative priorities. The internal machinery of most White Houses puts judicial nominees in a category separate from substantive legislation, even though the tactics Democratic lawmakers use to delay or defeat them are the same.

America’s corporate community has demurred, in part, because there has not been the kind of high-level, sustained effort by this White House, or any other, to mobilize its involvement as on more traditional legislative fights. Maybe it was unnecessary before Senate Democrats deployed their unprecedented filibuster tactics, but their moves require a bold counter-strategy. Mr. Bush should tap a like-minded CEO to organize business colleagues and begin a judicial-confirmation advocacy campaign that educates and rallies the corporate community.

The judicial-confirmation battle, and organizing corporate support for it, deserves a regular place at the top of the White House’s outreach and legislative agenda. At least until Senate Democrats, seated near the president on the West Front of the Capitol today, do more than politely applaud, and provide his judicial nominees the courtesy of an up or down vote.

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