Nomination Is a Classic Case of Partisanship

Posted September 26, 2007 at 5:55pm

On Sept. 6, President Bush nominated Duncan Getchell, a Richmond lawyer, for an opening on the U.S. Court of Appeals for the 4th Circuit. The nominee was not one of the five individuals whom Virginia Sens. John Warner (R) and Jim Webb (D) had earlier proposed to Bush. This nomination is a classic example of divisive partisanship, although the president frequently mouths the platitudes of bipartisanship. Thus, the Commonwealth’s Senators and the entire Senate would be within their rights to reject the nominee. Indeed, Webb recently stated there was “no way” that he would return a “blue slip” allowing Getchell’s Senate consideration to proceed.

During May and June, Warner and Webb interviewed more than 10 candidates whom numerous Virginia bar groups had evaluated and recommended. The Senators cooperated in a bipartisan way to ensure that Bush appointed a fine Virginia attorney. This judicial position opened when Judge Emory Widener, who died last week, took senior status.

Warner and Webb promptly attempted to guarantee that an outstanding lawyer fill the opening. The 4th Circuit resolves appeals from the district courts in Virginia, West Virginia, Maryland, North Carolina and South Carolina. After Webb’s November election, he and Warner began working together. Warner urged that Webb evaluate candidates, including Getchell, whom Warner and ex-Virginia Sen. George Allen (R) had proposed to Mr. Bush for another empty seat last year but whom he did not nominate. After Webb reviewed them, he suggested reopening the process, and Warner agreed. This was appropriate, as Webb had won and the Senate makeup was modified, facts Warner acknowledged on Sept. 8 by stating his position had changed because “Democrats are now the majority party.”

When the 110th Congress opened in January, the Senators announced that they would forward Bush recommendations of several Virginians. Warner and Webb asked the Virginia bar organizations for ideas on candidates, and they tendered a dozen well- qualified attorneys. The candidates whom the Senators proposed are smart, industrious and independent, while having balanced judicial temperament. Warner and Webb remarked that they “spent many hours reviewing potential nominees and conducting personal interviews.” The “collaborative process” prompted the Senators on June 12 to forward “five individuals [they found] eminently qualified”: U.S. District Judge for the Western District of Virginia Glen Conrad, Virginia Supreme Court Justices Steven Agee and Donald Lemons, University of Richmond Acting Dean John Douglass and practicing attorney Thomas Albro.

The White House should have been receptive to these bipartisan, constructive suggestions. The Senators are lawyers who know the qualities that attorneys must possess to serve as 4th Circuit judges. Warner and Webb were “fully prepared to strongly support” and jointly propose to the Judiciary Committee and the Senate for confirmation any of the five Bush might have picked. This bipartisanship that would have facilitated approval is rare, as vicious partisanship has long troubled appellate court selection.

The day on which Bush chose Getchell, Warner observed that he remained “committed to the recommendations stated in my joint letter with Sen. Webb to the president, and I have so advised in a respectful, consistent manner in my” White House consultations. Webb said: “Despite our good faith, bipartisan effort to accommodate the president, the recommendations that Sen. Warner and I made have been ignored. The White House” laments Congress’ obstructionism, but cannot complain about judicial appointments “when they proceed to act in this manner.”

Sens. Warner and Webb have suggested five well-qualified consensus nominees by cooperating on this essential Senate responsibility. The president’s rejection of the bipartisan process suggests that he is more interested in picking fights than picking judges and means Bush should not be surprised when the Senate refuses to confirm his nominee.

Carl Tobias is the Williams Professor at the University of Richmond School of Law.