Tradition trumps Cadish
Perhaps the saddest aspect of Clark County District Court Judge Elissa Cadish’s failed nomination to the federal bench is that nothing has changed.
A single senator may still block a judicial nomination by withholding his signature from a “blue slip,” which the Senate Judiciary Committee sends to ask home-state senators their views on nominees. That’s not required by the Constitution, or the United States Code, by the way. It’s simply a Senate tradition.
And it can happen even if the dissenting senator is of a different political party than the president or the senator who suggested a nomination. It’s long past time that rule was killed. Senatorial privilege – the right of the senior senator of the president’s party to recommend judicial nominations – should not be subverted by a single person. If a senator doesn’t like a nominee, he or she should testify to that fact at a hearing, or vote that way on the floor.
In this case, Cadish never got even a hearing, despite more than a year of waiting.
Why? Because U.S. Sen. Dean Heller objected to her stance on gun rights. In a 2008 questionnaire, Cadish indicated she didn’t believe there was a personal right to own firearms enshrined in the Constitution.
For the record, that’s wrong. And not long after Cadish wrote those words, the U.S. Supreme Court said so, in a pair of cases that established there is a personal right.
Cadish acknowledged those rulings, saying if she were to be asked the same question today, she’d give a different answer. But most important, she said in the 2008 questionnaire and after the matter became controversial that she would enforce the law as interpreted by the Supreme Court.
That’s the perfect – and the only – answer for a United States District Court judge.
Heller could have accepted that answer. It was good enough for me, a gun owner whose views of the Second Amendment make Heller seem like a liberal. (I’m assuming that; Heller’s staff ignored a list of pointed gun questions I sent him last year.)
Instead, Heller refused to reconsider and Nevada lost a judge whom 88 percent of lawyers in the Review-Journal’s biennial Judging the Judges survey said should be retained.
“While I agree with the withdrawal of this nomination, this has been an unfortunate situation from the very beginning and I wish Judge Cadish well in her future endeavors,” Heller said in a statement. “I look forward to working with Sen. [Harry] Reid so that we can avoid similar situations and move swiftly to confirm future nominees.”
Unfortunate is an excellent word for what happened, actually. Heller originally refused to say why he’d refused to sign the vaunted “blue slip,” and only admitted his reasons once the survey came to light. Thereafter, he refused to change his mind, even after a meeting with Cadish and an endorsement of her from no less a luminary than Las Vegas Sands CEO Sheldon Adelson, whose financial backing aided a narrow Heller election victory in November.
After Reid persuaded President Barack Obama to re-nominate Cadish this year, there was a brief flash of hope that a deal was in the works. That ended when Cadish, bowing to the inevitable, graciously bowed out on Thursday.
There’s a temptation to give Heller his due, saying he stuck by his pro-gun principles even under pressure from the state’s senior senator and a major donor. But there’s no getting around the fact that his intransigence denied Nevada an extremely well-qualified judge, at a time when they’re badly needed.
In the meantime, although attorney Andrew Patrick Gordon is expected to be confirmed to the bench on Monday, another nominee — Jennifer Dorsey — has yet to have a hearing. Once again, Heller has delayed signing a blue slip for her. His staff says he’s “continuing to review” Dorsey’s nomination.
Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.
