Only 10 days into the new year, and already we have a political sin worthy of the 2012 championship. New Jersey U.S. Senator Robert Menendez has exposed himself as a breathtakingly vindictive pol who has no qualms about messing around with the country’s judicial system in what looks to a lot of people like an attempt to settle a personal feud.
The backstory: It was discovered this week that Menendez, a Democrat, is using one of the Senate’s myriad un-democratic traditions to block the appointment of Patty Shwartz to the Third District U.S. Court of Appeals, the appellate court serving Pennsylvania, New Jersey and Delaware. This is the first time any Democrat has blocked one of President Obama’s judicial nominations (Republican blocks are another story altogether), so you’d expect the issue would be some grave concern about her qualifications, or at least a deep ideological divide.
And for what it’s worth, that’s just what Menendez claims. He told the Star Ledger that, after interviewing Shwartz, he found “she misapplied the application of strict scrutiny versus rational basis review to the questions at hand.” Sure.
His claims might be more convincing had Shwartz not been given a unanimously well-qualified rating from the American Bar Association (the association’s top possible rating). What seems more likely is that Menendez blocked Shwartz because she is the long-time companion of James Nobile, a career prosecutor who runs New Jersey’s federal public corruption unit, the same unit that spent five years investigating Menendez’s dealings with a Hudson County non-profit. That investigation wrapped up this fall, with no charges being filed against Menendez.
And now, it seems, Menendez has an opportunity to get back at Nobile. If you haven’t heard of Nobile before, that’s because he’s a guy who avoids the limelight and has no discernible political background. Menendez and some other New Jersey Democrats have grumbled that the U.S. attorney’s public corruption investigations have been politically motivated. That’s possible, of course, but it seems more likely that Democrats keep getting targeted simply because they have largely run New Jersey for decades, Gov. Christie notwithstanding.
There are a couple of obvious problems with this situation. First is Menendez’s apparent fit of personal pique, his rejection of a qualified jurist whose only apparent sin is that she is the companion of a man Menendez dislikes. The second problem is the fact that Menendez’s opinion matters at all here. There’s no law, no Constitutional clause that gives single senators the right to veto a presidential judicial appointment. It’s simply tradition. The practice, known as blue-slipping, gives home-state senators the opportunity to offer their opinion on judicial nominees, either by approving, rejecting or simply not commenting, which is tantamount to a rejection. The practice is given force by the Senate Judiciary Committee, whose members tend to honor rejected blue slips from home-state senators (at least in those cases where the rejection comes from a senator of the same party as the president).
The entire thing is an invention dreamt up by senators to expand their power. The best Philadelphia parallel would be City Council’s councilmanic privilege, which gives council members veto power over most anything that occurs within their own districts, and is likewise not based in law, but tradition. For those who aren’t senators or council members, the problems with this kind of extra-legal concentration of power in the hands of flawed individuals are pretty obvious. Perhaps we ought to thank Sen. Menendez for offering up such a textbook example of why blue-slipping and practices like it have got to go.