HUGH HEWITT ON NOMINATIONS

Over at the Weekly Standard (where I usually only enjoy reading David Brooks), Hugh Hewitt recommends that Bush use recess appointments to fill vacancies with judges he likes and also with "rock-ribbed conservatives who might be willing to serve 15 to 18 months for the good of the cause."

Hewitt is a little worried about his recommendation, since, according to his own terms, this would be a "fundamental change in the nomination process, though a constitutional one." The change is necessary to counter what he sees as an irresponsible Democratic obstructionism that is "wrecking a judicial nomination and confirmation process that has worked for more than two centuries." And who was at the beginning of this constitutional waywardism? Yep, you betcha: Bill Clinton.

Bill Clinton broke the taboo against recess appointments to the bench, however, with his end-of-term appointment of Roger Gregory to the Fourth Circuit Court of Appeals. . .

If you're going to defend something that is supposedly two hundred years old, you probably should know something about it.

Here's a (perhaps incomplete) list of recess appointments by Presidents to the federal bench in the second half of the 20th century, compiled from Sheldon Goldman's Picking Federal Judges:

• Truman: Neil Andrews, Carroll Switzer, Burnita Matthews, William Hastie


• Eisenhower: Andrew Caffrey, C. Nils Tavares


• Johnson: John Davis, A. Leon Higginbotham, Spottswood Robinson (all Kennedy appointees)


• Carter: Walter Heen

Not all of these recess appointments were made because of presidential disputes with the Senate, but many were.

I'm sorry, but I don't have much patience with people whose political memory (and research) only goes back as far as the first Reagan administration, but who make claims that are supposed to hold for "two centuries."

If Bush wants to go for recess appointments, let him go ahead. And eventually the voters will either punish him for this or they won't.

MORE: By the way, Hugh Hewitt tries to make out as if Democrats have been ungentlemanly while Bush has been sweet as a basket of honey flowers:

Bill Clinton broke the taboo against recess appointments to the bench, however, with his end-of-term appointment of Roger Gregory to the Fourth Circuit Court of Appeals--an appointment President Bush made permanent through his nomination and the Senate's consent as a gesture of conciliation. That gesture and many others have been rejected as inadequate by the Leahy-Daschle-Schumer-Kennedy caucus. Kindness didn't--and won't--work. Stronger measures are called for, not only to meet real needs for judges, but also to bring the controversy to the public's attention. The Democrats have crashed the process and shredded the traditions because of the pressure of abortion absolutists. Their record is a sorry one, and attention generated via the recess-appointment power will help shine light on their excess.

OK, so Roger Gregory's appointment was made permanent. What Hewitt forgets to mention ist that the only reason Gregory wasn't approved in the first place was because of the bitter (and racially charged) obstructionism of Jesse Helms, and that Gregory is the only African-American on the 4th Circuit, and that Bush had to be persuaded to renominate him (he didn't just do it out of the kindness of his heart). Bush could have refused to reappoint him but it would have been politically stupid.

Reagan faced no such repercussions concerning the renomination of Walter Heen, whom Carter had appointed to the federal district court of Hawaii. Reagan refused to renominate him.