Bench pressed: Activists go political against a prospective judge

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The Post-Gazette has consistently bemoaned the rank partisanship that has made filling federal judgeships much more difficult than it should be. The problem has been particularly bad during the years of the Obama administration, a time when conservatives have blocked many of the president’s appointments to the bench with little regard to credentials.

But both sides can play that game. As the Post-Gazette’s Tracie Mauriello reported, liberal activists are rallying to resist what they think is a deal being cooked up behind closed doors by Pennsylvania’s senators, Democrat Bob Casey and Republican Pat Toomey.

As the critics explain it, if Mr. Casey signs off on the nomination of Pittsburgh lawyer David J. Porter to the U.S. District Court for the Western District of Pennsylvania, then Mr. Toomey would defer to Mr. Casey on at least three of Pennsylvania’s other eight judicial vacancies. Those who are protesting believe Mr. Porter is a right-wing activist not fit for the bench. The advocacy group Keystone Progress has presented a petition signed by 33,000 people protesting Mr. Porter’s feared nomination.

While sometimes proved right, watchdogs of the left and right nevertheless are inclined to bark at the slightest alarm — the very thing that has made filling judicial vacancies so difficult.

The argument against Mr. Porter floats on a raft constructed of thin reeds. Keystone Progress says he is a Tea Partier who is against abortion rights, gay marriage and restrictions on gun ownership. It notes that Mr. Porter leads the Lawyers Chapter of the Pittsburgh Federalist Society and that he wrote a commentary for the Post-Gazette in July 2012 raising concerns about the Supreme Court decision upholding most of the Affordable Care Act (a thoughtful piece, as it happens, which even those who disagree with his position could admire).

There’s a more straightforward interpretation of this: Mr. Porter, a litigator with Buchanan Ingersoll & Rooney PC, is simply a conservative with opinions that conservatives share. It is wrong to assume that he lacks decency and impartiality and the qualifications to be a federal judge. Indeed, lawyers contacted by the Post-Gazette who know him speak well of his professionalism and character.

Because any one senator can block a nominee to the bench, it makes sense for Sens. Casey and Toomey to agree on candidates. In a perfect world secret deals would not be needed, but in the partisan-afflicted real world there’s a shocking 85 vacancies on district and appellate courts around the country.

Certainly, judicial activism is a concern, but that is what thorough vetting is for. Mr. Porter deserves a fair process. That he holds certain conservative opinions should be a caution for Mr. Casey, but not a disqualifying factor. He should not cast him aside simply because liberal activists have tried to make him radioactive — and this before he’s even nominated. Knee-jerk reactions are no better on the left leg than on the right.


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