Whatever the outcome of Tuesday's elections, President Bush will face the six-year malaise. I call it that, since all the pundits talk about how difficult the last two years of any presidency are to get anything done. All the politicians who have presidential ambitions are too busy campaigning to think about anything else and everyone else has presidential fatigue. One place it will be more obvious is in judicial nominations.
That's not to say that President Bush has had the easiest time getting the nominees he promised the electorate in 2000 and 2004 approved. Reshaping the judiciary has been an uphill battle for the president, since so many Democrats think being able to kill one's kid at any point up till birth is a constitutional right.
Adding to the usual uphill battle a lame-duck president faces in filling judgeships is an increase in conservative animosity directed at sitting judges. The criticism has so politicized relations between Congress and the judicial branch that retired Supreme Court Justice Sandra Day O'Connor and Bush's own chief justice, John G. Roberts Jr., have warned that judicial independence may be at risk.
The "troubling trend for me is the institutional criticism by Congress of judges and their rulings," said Susan Haire, an associate professor of political science at the University of Georgia who studies the federal courts. "That is new. I'm not sure it is gaining momentum but it troubles a lot of people who study courts," she said.
Yes, that people are looking at court decisions from abortion to property rights to the Pledge of Allegiance and wondering, "What the hell are they doing?!" would be a bit worrisome to the unelected branch of government. I guess the idea the the Constitution doesn't give the judiciary a free hand without checks or balances must be lost on some of our judges, former justices, and academic elites. Fortunately, President Bush isn't planning on bowing to those judicial snobs when it comes to nominees:
Despite the contentious atmosphere surrounding confirmations, Bush has given every indication that he intends to be aggressive in promoting his candidates -- even in the face of stiff Democratic opposition.
And why on earth would he? Most Americans are deeply disturbed by the fact that so many judges can't read the plain language of the statutes and laws they are supposed to be interpreting, especially since those same Americans think the words are easily understood. And, from a political sense, President Bush can help Republicans more by nominating the kinds of conservative judges he promised rather than compromising with Democrats. In any fight of that kind, Democrats in Congress will look disrespectful, stubborn, and obnoxious. And while that might thrill the guys posting on Daily KOS, the average voter dislikes it when Congress is disrespectful of the president (witness the government shut down during Bill Clinton's administration, not to mention the Democrat takeover of Congress in 1998 following impeachment). Simply put, Bush will do more to help Republicans in '08 by nominating the judges he promised in 2000 and 2004. I want to see Harry Reid explain why private property rights and "under God" shouldn't be defended by our judiciary but same sex marriage should.