The fight to fill judicial vacancies grows ever weirder.

The fight to fill judicial vacancies grows ever weirder.

The fight to fill judicial vacancies grows ever weirder.

The law, lawyers, and the court.
Sept. 10 2007 6:58 PM

Rush to Judgment

The fight to fill judicial vacancies grows ever weirder.

Last week, President Bush nominated two candidates for seats on the U.S. 4th Circuit Court of Appeals, which now is operating with five vacancies on its 15-member bench. The president opted to casually insult Virginia's two home-state senators by disregarding a list of five bipartisan selections who would have easily been confirmed, sent to the White House last June from Sens. John W. Warner, R, and James Webb, D. Bush picked one candidate who Warner and Webb considered and rejected—and a second who appears to be of the view that what the law needs more of is Rush Limbaugh.

 Is it that Bush simply doesn't care about the need for the support of home-state senators in the judicial confirmation process or that he doesn't fully understand that the judiciary committee is no longer under Republican control? Does he hope no one will notice that his judicial picks are as radical today as they were six years ago? The answer, surely, is that Bush is fighting a symbolic war over the courts. Winning is far from everything, because he is fighting this war to mollify groups that don't seem to understand that every seat that remains vacant today may well be a seat filled by a President Hillary Clinton in 2008.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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Which brings us to Steve A. Matthews, the Bush pick for the 4th Circuit, announced last week. Now, I am certain Mr. Matthews is an able lawyer, and the fact that he has logged no time at all as a judge should not necessarily count against him. But a brief glance at his résumé suggests that Matthews' strongest credentials for this federal appeals court seat include his role as former state chapter president of the Federalist Society, and ranking close behind that is his membership on the board of directors for the Landmark Legal Foundation.

The Landmark Legal Foundation? Wait: Isn't that the outfit run by Mark R. Levin, the man who brought us Men in Black: How the Supreme Court Is Destroying America?The constitutional theory proffered in that book was, as you may recall, that any judge who arrives at a different legal conclusion than Levin or Rush Limbaugh is an "activist" who threatens America with imminent "tyranny." Matthews is thanked by name in Men in Black. Is it a bit strange that Bush's latest judicial nominee was intimately involved in a best-selling book that argues for kneecapping the federal judiciary?

What other important jurisprudential efforts have been spearheaded lately by the Landmark Legal Foundation? Probably none as important as its recent effort to nominate Rush Limbaugh for a 2007 Nobel Peace Prize. Describing Limbaugh as "the foremost advocate for freedom and democracy in the world today," the foundation's nominating letter goes on to enthuse that "everyday [sic] he gives voice to the values of democratic governance, individual opportunity and the just, equal application of the rule of law—and it is fitting that the Nobel Committee recognize the power of these ideals to build a truly peaceful world for future generations."

Memo to TheDaily Show: What do you do when a joke writes its own punch line?

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Also championing Matthews is Fred Fielding, counsel to President Bush. Apparently, Matthews and Fielding worked together during Reagan's second term in the mid-1980s. Matthews' online résumé notes that "[a]t Justice, he advised Attorney General Edwin Meese III and President Reagan on the selection of nominees for federal judgeships, and served as special counsel to Attorney General Meese on the Iran-Contra investigation." That certainly rounds out Matthews' résumé, but it doesn't make him an attractive candidate for senators seeking bipartisanship and compromise.

Of course, those same senators who sought bipartisanship and compromise—in this case, Webb and Warner—were themselves rudely smacked upside the head with the president's second nominee, Virginia's E. Duncan Getchell, whom they'd met with but left off their final list. Maybe from Bush's point of view, that's a selling point for him. Is Bush truly this tone deaf?

The state of the 4th Circuit Court of Appeals illustrates why the president has become so brazen. Here is a court that was so reliably conservative that the administration once hauled terrorists out of other jurisdictions so these judges could hear their appeals. But with the 4th Circuit now divided between six judges who were appointed by Republican presidents and five named by Democrats, and with five vacancies, the court has become a perfect template for the current judicial logjam. Conservative watchdog groups, fearful of losing the 4th Circuit, have redoubled efforts to get their nominees confirmed. They feel—probably not unreasonably after all the promises they've been made—that anyone other than a radical right-wing jurist is unacceptable. They also feel that the president owes them a last parting gift of a hugely conservative federal bench. And they seem to be demanding that Bush simply jam through their preferred candidates—blue slips, filibusters, and loss of the Senate in 2006 be damned.

Democratic senators on the judiciary committee, it's your move now. You have to figure out whether Steve A. Matthews—who would evidently put Rush Limbaugh in the same great leader category as Nelson Mandela, Mother Teresa, Desmond Tutu, and Elie Wiesel—is truly the kind of serious legal thinker we need more of on the federal bench, or whether he merely represents what has come to pass for serious legal thought in the Bush administration.