- The Washington Times - Thursday, September 30, 2010

Suddenly, on the subject of judicial nominations, Democrats are crying so many crocodile tears that they sound like an Elton John song. In comparison to Democrats’ abuse of George W. Bush’s judicial nominees, Republican senators have barely touched President Obama’s selections.

The Democrats’ caterwauling began at a Senate Judiciary Committee hearing Sept. 23. Sen. Dianne Feinstein, California Democrat, complained that U.S. Magistrate Edward M. Chen is being blocked from a California federal district judgeship largely because “The Washington Times has written at length about one line in a speech when he talked about … having some feelings of ambivalence and cynicism when confronted by appeals to patriotism. They have used this to try to paint Judge Chen as unpatriotic.”

She likewise complained that California academic Goodwin Liu is being blocked from the U.S. Court of Appeals for the 9th Circuit because of things he said in “this speech, that speech,” taken supposedly out of context to create “an arbitrary slurring of character. … I don’t recall myself ever participating in this kind of thing on a Republican-nominated judge.”

Oh, really? In 2003, Mrs. Feinstein raked over the coals Alabama’s then-Attorney General William H. Pryor Jr. for once saying that “the challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective.” She suggested that Mr. Pryor was a budding theocrat. Yet he preceded that speech passage with this strong disclaimer: “The American experiment is not a theocracy and does not establish an official religion. …” The overall context was even more clear: Mr. Pryor was the commencement speaker for his alma mater, a Catholic high school. He was quoting Thomas Aquinas to tell the graduates they have an obligation to call on their “Christian perspective” to be good citizens; not to “Christianize” government, but to use their moral tradition to guide their actions as citizens. Meanwhile, Mr. Pryor had a long public record of subjugating his own faith-based preferences when the law dictated otherwise.

Having joined other Democrats to slur Mr. Pryor’s character, Mrs. Feinstein helped block his nomination for two more years. (He finally was confirmed through the “Gang of 14” deal, which she opposed.)

Now, back to the Sept. 23 hearing on nominees Mr. Chen and Mr. Liu: Sen. Sheldon Whitehouse, Rhode Island Democrat, bolstered Mrs. Feinstein by lamenting that Republicans would “destroy a tradition of senatorial courtesy,” crossing a “new threshold” of “procedural obstruction” by extending it to district court nominees, not just appellate choices.

Mr. Whitehouse dissembles. As a Judiciary Committee member, he didn’t protest when Democrats refused even to hold a vote on district court nominee Gus A. Puryear IV, a bright, young lawyer from Nashville supported by numerous Democrats in good standing, such as former Clinton official Thurgood Marshall Jr. Mr. Puryear’s sin was to work briefly for Darth Vader himself, Vice President Dick Cheney, which was enough for Mr. Whitehouse and company to block him permanently.

Curiously, Democrats are more concerned with procedural fairness for another Nashville lawyer. Attorney General Eric H. Holder Jr. entered the fray with a Tuesday column in The Washington Post. He said Republican obstructionism is causing “a confirmation crisis in our courts.” His first example was that of Nashville’s Jane Stranch who, horror of horrors, “wait[ed] almost 300 days for an up-or-down vote by the full Senate.” Mr. Holder complained other nominees have “endur[ed] long delays,” despite support from home-state senators and decent ratings from the American Bar Association.

As Alabama Republican Sen. Jeff Sessions noted on Sept. 22, Democratic obstructionism was worse. The Senate actually did confirm Mr. Holder’s poster girl, Ms. Stranch. But Mr. Bush’s nomination of Robert Conrad lapsed after 585 days with no hearing. Miguel Estrada finally withdrew after hearing denials and then a filibuster cost him 858 days in limbo. These nominees, and many others similarly blocked, also had home-state senator support, plus superb American Bar Association ratings. In the first two years of Mr. Bush’s term, Democrats confirmed only six of 25 appellate court nominees.

Democrats offered no explanation for their mistreatment of many of the Bush nominees permanently blocked - although a staff memo did recommend opposing Mr. Estrada because “he is Latino.”

None of these examples would justify obstructionism by Republicans divorced from real principle. Fortunately, it’s not. On the nominees to whom Republicans most object, they offer substantive reasons without character smears. Contrary to Mrs. Feinstein’s complaints, for instance, The Washington Times editorialized against Judge Chen, and Republican senators complained, not because of one speech allegedly out of context, but because several speeches show he thinks the United States is awash with “irresistible forces of racism, nativism and scapegoating,” and that a judge should draw on his own “ethnic and racial background” when deciding cases. This latter is a form of lawlessness; it should be disqualifying.

Similarly, opposition to Mr. Liu is not based on out-of-context speech passages. Instead, Mr. Liu failed to provide 117 speech texts to Senate reviewers - a breach of integrity - and compiled a record so radical that centrist analyst Stuart Taylor characterized it as favoring “racial preferences without end” and “reparations for slavery,” plus a supposed constitutional right to welfare and an arbitrary “judicial power to reshape society.”

These aren’t character slurs; they are serious judicial disqualifications.

Quin Hillyer is a senior editorial writer for The Washington Times.

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