'Advise and Consent' Now 'Search and Destroy,' Bush Says

By Kevin Mooney | July 7, 2008 | 8:06 PM EDT

(CNSNews.com) - When it comes time to vetting judicial nominees, the Senate's authority to "advise and consent" has been reinterpreted to mean "search and destroy," President Bush told the Federalist Society Thursday evening.

Judges who honor the Constitution as written often are blocked from the federal bench by a minority of legislators who prefer a results-oriented form of jurisprudence, Bush said.

The mistreatment of judicial nominees reflects poorly on the Senate, and it subtracts from the vitality of America's constitutional democracy, the president told audience members.

"Our constitution prohibits a religious test for any federal office," Bush said. "Yet when people imply a nominee is unfit for the bench because of the church where he worships -- we lose something."

"When a bar association issues what it claims are objective ratings about a nominee's professional qualifications, yet suddenly and without explanation lowers the rating of a nominee on the eve of his confirmation hearing, we lose something," he continued.

"When the wife of a distinguished jurist proudly attends his hearing and is brought to tears by ugly and unfounded insinuations that her husband is secretly a bigot -- we lose something."

The Senate's unwillingness to proceed to an up-or-down vote on federal judgeships has also created an emergency situation in some parts of the country, Bush claimed. In some instances judgeships have gone unfilled for years, he said.

"When Americans go to court they deserve swift and fair answers," Bush argued. "The U.S. Senate should not stand in their way."

Some judicial nominees who have been "unfairly tarnished" are well known figures to the Federalist Society, Bush said. But there are many others who removed themselves from consideration before the process was initiated, he added.

"What you do not see are the good men and women who never make the confirmation process," he said. "Lawyers [who are] approached about being nominated have politely declined because of the ugliness, uncertainty and delay."

Despite the sad state of the confirmation process, Bush said, there is good news on the judicial front thanks to the Federalist Society. A rising generation of lawyers committed to limited government is coming of age, he said.

"Members of the Federalist Society believe in a single proposition -- our written constitution means what it says," Bush said. "I don't see how holding such a common-sense view could be considered controversial."

The notion of a "Living Constitution" is damaging to the rule of law because it opens to the door to judicial activism, Bush said. "Unfortunately, some judges give into the temptation and make law instead of interpreting it," he said. "Such judicial lawlessness is a threat to our democracy."

Bush delivered his remarks in Union Station where the Federalist Society was marking its 25th year anniversary. The organization, which includes both conservatives and libertarians, was founded in 1982.

A number of dignitaries in and out of government joined with Bush to help mark the occasion. These included Justices Antonin Scalia, Samuel Alito and Clarence Thomas.

Bush reminded the audience of Justice Thomas's arduous confirmation battle in 1991. "He was nominated by my father and his confirmation process is a tale of all that is nasty and unkind in Washington," Bush said. "It is also a tale of perseverance and triumph."

"To be a good judge takes a special kind of person," Bush concluded. "A judge is someone who is learned, someone who has common sense and a healthy respect for precedence and the law, and in addition a judge must be independent enough to resist the temptation of politics or favorable treatment by the media.

"A judge must be modest enough to appreciate the limited role he plays under the constitution."

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