by Bradley Parsons
Staff Writer
One of Jacksonville’s most prominent jurists said Monday that U.S. Senate Democrats were obstructing justice through their ongoing filibusters of President Bush’s judicial nominees.
Democratic senators have refused since 2001 to allow votes on Bush’s nominations to federal appeals courts. In doing so, U.S. Circuit Court Judge Gerald Tjoflat said the senators were keeping those courts understaffed and interfering with their operation.
Most troubling, said Tjoflat, were requests that candidates answer questions on many of the most divisive issues facing contemporary courts. By stating a position on abortion, gun rights or affirmative action, Tjoflat said the candidates would disqualify themselves from ruling on those issues.
“If they don’t answer those questions, they can’t get a vote; if they answer them they disqualify themselves from presiding on those cases. In my view that’s interfering with the court’s ability to administer justice, and that’s the common-law definition of obstruction of justice,” said Tjoflat.
Democrats on the Senate’s Judicial Committee have said they’re using the filibusters to block candidates that are outside the country’s mainstream ideology. The minority party blocked a vote on on U.S. District Judge Charles Pickering’s promotion to the appeals court, because they said previous public stands against abortion and voting-rights legislation disqualified him.
Although Republicans control the Senate by a 51 to 48 margin — Jim Jeffords of Vermont lists himself as independent but has sided more often with Democrats — the minority party has used filibusters to block votes on four appeals court candidates. Tjoflat said he worried that it would become increasingly difficult for any nominee to survive the process.
“If the Democrats get their candidate in the White House, it wouldn’t surprise me if the Republicans took the attitude that what’s good for the goose is good for the gander,” he said.
Tjoflat doubts he would have been confirmed in the current environment. His 1970 confirmation to the U.S. District Court took 20 minutes. He recalled senators from both parties based their votes on qualifications not ideology. The same standard should exist today he said.
Most outstanding candidates would have come in contact — either as judge or lawyer — with controversial issues, said Tjoflat. Any candidate was likely to have taken positions offensive to one side of the Senate chamber.
“If you were a lawyer, and you tried big cases, you simply are not going to be confirmed if you were not trying them for the Sierra Club or the ACLU,” said Tjoflat. “Any kind of association with big corporations stains you. I don’t think most of the great judges we’ve seen would have been confirmed.”
In the current climate, Tjoflat said he’s concerned less good candidates will bother to accept nominations. He cited Bush appellate court nominee Miguel Estrada who withdrew from consideration after 18 months without a vote.
Tjoflat said less distinguished candidates would be the only survivors of the current process.
Short of either party winning enough Senate seats to break a filibuster (60), Tjoflat said there could be a legislative answer to the parliamentary entanglements. Senate Republican Bill Frist of Tennessee, has pushed a bipartisan bill with Sen. Zell Miller, a Georgia Democrat, that would give every nominee a vote within two weeks of confirmation hearings.