Senate Democrats Continue to Obstruct Appointments to the Federal Judiciary

The clock is ticking on the deal that Democrats and Republicans have struck over the President’s judicial nominees, which calls for three appeals courts nominees to be approved by Memorial Day.

For the past 16 months Senate Democrats have been on a course of approving a record-low number of nominees in the final two years of a President’s term. Now they appear to have maneuvered the White House into agreeing to a compromise where two of the three nominees in the deal would, in fact, be the Democrats’ own picks. One of them, Helene White, is Sen. Carl Levin’s (D-Mich.) “cousin-in-law,” whose nomination to the bench was blocked by Republicans more than a decade ago. Determined to move her forward, Levin blocked four nominees for the Sixth Circuit Court of Appeals until the President agreed to nominate White.

Now Sen. Levin wishes to count White toward the three-judge target by Memorial Day. Because the Sixth Circuit would still have a small Republican-nominated majority even with the addition of White and another nominee President Bush actually wants, Levin can posture, as he did to the New York Times yesterday, that it would “not be appropriate” to take the political balance of the Sixth Circuit into consideration. GOP senators on the Judiciary Committee respond that the Memorial Day compromise lets the obstructing Senate majority approve two Democratic choices and leave a long list of Presidential nominees waiting in a limbo that has lingered for years.

The whole process is a spectacle unworthy of the Senate. Judicial choices will always matter, but that they matter so much is a result of the fact that judges now routinely legislate from the bench. Our founders did not want a partisan judiciary. We have one, and it’s high time our timorous politicians emerge from behind the black robes of policy-making judges and reclaim their legislative authority, even if that means having to vote on tough issues they would rather kick over to the unelected branch.

Profiles in Cowardice
by Andrew C. McCarthy
Posted: 02/15/2008
from Human Events

On Tuesday, we got a double-winner. First, the Senate voted to approve an overhaul of intelligence law which, though flawed, provides authority for American intelligence agencies to continue monitoring the savages trying to kill us. Second, we got inescapable confirmation that Senators Hillary Clinton and Barack Obama, the two contenders to be the Democrats’ nominee, are not fit to be president of the United States.

Understand: this was the most important vote on national security in years.

In 2007, a ruling of the court created by the ill-conceived 1978 Foreign Intelligence Surveillance Act (FISA) required the intelligence community to seek court permission before monitoring terrorists operating outside our country — that is, outside the jurisdiction of United States courts.

Let’s say al Qaeda operatives in Iraq captured a U.S. marine. In effect, our military and intelligence services, while desperately trying to rescue one of their own, would now have to seek court permission in order to eavesdrop on the foreign terrorists who carried out the capture — alien enemies who have no conceivable privacy rights under the Fourth Amendment. Such was the conclusion of an unidentified federal judge, in a ruling that radically altered three decades of FISA theory and practice, a ruling the American people have not been permitted to read. (Just imagine the hue and cry if George W. Bush had secretly reversed the foundations of surveillance law. Here, where the sea-change benefits al Qaeda rather than the American people, the silence is deafening.)

Democrats, of course, have fought every sensible national-security improvement since 9/11. Yet, so preposterous was the notion that the NSA should need a warrant from a judge in Washington in order to listen as, say, a terrorist in Pakistan gives directions to a terrorist in Afghanistan that even Democrats relented — or at least enough of them to enact last August’s “Protect Act.” This stopgap measure (the Left would not agree to more than six months of common sense) enabled our spies to continue spying outside the U.S. without court interference, just as FISA intended.

Nevertheless, conspicuously absent from the lopsided 60-28 majority were Senators Clinton and Obama. So deep were they in the thrall of the anti-war, anti-security Left that they dared not vote in favor of preserving the intelligence-gathering powers necessary to protect — even for just six months — the nation they are vying to lead.

It is worth pausing to recall why we have FISA. Very simply, its point was to provide a modicum of due process before Americans inside the United States could be subjected to national-security monitoring. It was a reaction (in truth, an overreaction) to Watergate era domestic-spying on the Nixon administration’s political opponents. But even the reckless Congress of the 1970s did not seek to protect foreign spies and terrorists operating beyond our borders. FISA was never intended to bring tens of thousands of foreign communications under judicial supervision. Such a process would compel the Justice Department to file applications for all such surveillance, a burden that could not be met. The consequence would be a breakdown of our capacity to acquire the information most essential to safeguarding Americans against attack — to say nothing of the 200,000 American men and women putting their lives on the line in Iraq and Afghanistan.

The reprieve granted by the Protect Act expires at midnight tonight.. Hence, the intense pressure this week to get a FISA overhaul enacted. In the Senate, the Intelligence Committee proposed a bill which accomplishes three major improvements. It streamlines the arduous FISA application requirements (though not as much as it should). It provides immunity from suit for telecommunications providers which cooperated in the NSA’s warrantless surveillance following the 9/11 attacks. (Though I am a longtime FISA critic, I note in the interest of full disclosure that my wife works for Verizon.) And most importantly, it solidifies the Protect Act’s reaffirmation that the American intelligence community’s foreign operations are beyond court supervision — that is, Osama bin Laden is not protected by FISA or the Fourth Amendment.

It’s difficult to imagine more vital legislation. To be sure, the proposal has many flaws — as any bipartisan legislation is apt to have given a Senate in the grip of the same Democrats who’ve fought intelligence reform for years and tried just as long to derail the Patriot Act. The Intelligence Committee would, for example, expand the role of the FISA court; create a new warrant requirement for overseas monitoring of American citizens working with the enemy; effectively nullify the president’s power, long-recognized by the federal courts, to order national-security surveillance without warrants; and sunset the intelligence overhaul after six years despite the patent need for a permanent fix. Still, with jihadists striving toward more 9/11-style attacks and our forces in urgent need of battlefield intelligence, these tradeoffs are unavoidable. It would be the height of irresponsibility to halt the intelligence flow.

Well, welcome to the height of irresponsibility.

By a quirk of fate, this week’s action in the Senate happened to occur on the same day as the so-called “Potomac Primary” — the presidential nomination contests in Virginia, Maryland and the District of Columbia. Which is to say: right in the shadow of Capitol Hill. The geographical demands of campaigning would be no excuse: Our three principal contenders for the Oval Office, Republican John McCain and Democrats Hillary Clinton and Barack Obama, all happen to be United States Senators and all happened, on Tuesday, to have business right in the neighborhood. There was no reason they couldn’t do their day jobs.

Senators McCain and Obama did theirs, and in starkly different ways. For McCain, it was an opportunity to show national security conservatives that his preening on coercive interrogation methods does not mean he fails to grasp the primacy of intelligence collection in our current threat environment. He strongly supported the bill.

By contrast, Senator Obama opposed the provision across the board, backing each (unsuccessful) amendment to weaken or scrap it. Exhibiting a Carteresque insouciance about national-security, he would not only vest our enemies with privacy protection while exposing our citizens to heightened peril; he would deny protection to the very telecoms whose cooperation he would sorely need if elected president.

Understand how limited is the immunity we are talking about here: the telecoms would be protected from suit only if they either did not help the government’s warrantless surveillance program at all or helped it only in good faith reliance written assurance from the government of its legality. Denying immunity would not just be counterproductive — creating disincentives for cooperation from the industry whose expertise provides us with a technology edge over the people trying to kill us. It would be grossly unfair and eventually prompt the industry to question all government directives — even court orders — for fear that compliance would lead to ruinous litigation costs. In essence, Obama was laying the groundwork for a catastrophic breakdown in intelligence and law-enforcement that would wound his own presidency.

You have to hand it to Obama, though. Dangerous as his convictions are, he was willing to be accountable for them. The same cannot be said for the junior senator from New York, who proved herself a profile in no courage.

Less than a month ago, at their slugfest of a debate in South Carolina, Senator Clinton pointedly rebuked her rival, snarking, “Senator Obama, it’s hard to have a straight up debate with you because you never take responsibility for any vote.” Homing in on Obama’s record as a state lawmaker in Illinois, Clinton singed him for failing to stand up and be counted on core Democrat issues, such as abortion rights. “On issue after issue,” she inveighed, “you voted ‘present’” — refusing to take an accountable position.

Well, at least he was present. On Tuesday, for the most important national-security vote of her eight-year senate career, Clinton was a no-show. With the eyes of the country watching to see whether she would opt to continue pandering to the hard Left or protect the lives of the American voters at whose presidency she is clawing, Hillary made a calculated decision to sit it out.

So what are we to make of Mrs. Clinton? She is running on the strength of her purported vast experience. In essence, she relies on two things: her eight years as a very active First Lady in her husband’s administration, the supporting records for which Clinton officials refuse to release so we can study them; and her eight years as a U.S. senator, during which, when not repudiating her old positions, she now avoids taking new ones.

Tuesday was a good day. The Senate voted to give the next commander-in-chief the tools necessary to protect our nation, and our nation learned who is fit, and who is not, to be the next commander-in-chief.

Today is a bad day: the House is scheduled to recess without passing the Senate bill. If the Protect Act is allowed to expire, and our intelligence gathering is reduced or stopped, every Democrat responsible should be called to account. It would be an unfathomable dereliction, a lesson we’d inevitably learn with the next attack against Americans.