Following the Supreme Court’s recent rulings on abortion, homosexual
rights, school prayer, and parental rights, most Americans (at least for
the moment) believe that judicial appointments are an important
presidential campaign issue. Indeed they are. No legislative agenda —
liberal or conservative — is safe without judges who know their proper
place. Unfortunately, Republicans have failed to establish a winning
record on this issue.
Senate Republican leaders may not have a strategy for most things,
but their strategy for dealing with President Clinton’s judicial
nominees is called “Let’s Make A Deal.” As of August 1, Mr. Clinton had
appointed 369 judges, just nine shy of President Reagan’s appointment
record. Though Mr. Reagan faced a Senate of his own party for six years,
Mr. Clinton has appointed judges at a faster rate while facing an
“opposition” Senate for six years. Since becoming the majority,
Republicans have handed Mr. Clinton a 240 to 1 judicial appointment run.
In a “Dear Colleague” letter dated Oct. 19, 1998, Sen. Chuck Hagel,
R-Neb., asked: “What does the Republican Majority in Congress stand
for?” The GOP’s recent deals trading away judges certainly do not help
answer that question. For example, 28 Republicans who voted 100 percent
pro-life in 1999 supported Mary McLaughlin to the U.S. District Court.
She received a 1998 award from the ACLU for her pro-abortion activism.
Senate Republicans in 1997 passed a resolution condemning judges who
“legislate from the bench by imposing their personal preferences or view
of what is right or just.” Yet many of them voted to confirm Gerard
Lynch to the U.S. District Court in New York. Once a law clerk for the
late super-activist Supreme Court Justice William Brennan, Mr. Lynch
advocates giving the Constitution “meaning for the present” and has
written that the Supreme Court should decide whether “short-term
political objectives” are consistent with “fundamental moral values.”
The Senate GOP has collaborated with Mr. Clinton in stacking the
federal bench with activist judges for two reasons. The first is fear.
Senator Orrin Hatch, R-Utah, Judiciary Committee chairman, has told
grass-roots conservatives that he keeps pushing Clinton nominees fearing
that Democrats will block future Republican nominees.
Mr. Hatch knows, though, that Democrats need no excuse — revenge or
anything else — to block Republican judicial nominees. Sen. Joe Biden,
D-Del., blocked all Reagan nominees in 1985 to force a confirmation
slowdown. Judicial vacancies were much higher when Democrats controlled
the Senate in the Reagan-Bush years than they are today. Even from the
minority, more than twice as many Democrats filibustered Republican
nominees to all three levels of the federal judiciary than majority
Republicans have ever filibustered Democratic nominees.
Democrats killed nearly twice as many Republican nominees by denying
them Judiciary Committee hearings as the GOP has done to Democratic
nominees. Democrats allowed an average of 49 pending nominations to
expire at adjournment of the 102nd and 103rd Congresses while
Republicans only left an average of 23 nominations pending when they
adjourned the 104th and 105th Congresses. Driven by fear, Senate
Republicans only care about the precedents they set themselves;
Democrats can apparently act with impunity.
The second explanation is that, their anti-activism resolution
notwithstanding, Republican leaders simply do not believe in the
principles of freedom laid down by America’s founders. When Majority
Leader Trent Lott took his position in July 1996, for example, he said
on the Senate floor that philosophical principles were not his “basis or
guide stick” for deciding to move Clinton judicial nominees. Instead, he
said he was just trying “to get the calendar acted on.” It’s right there
in the Congressional Record of July 9, 1996, on page S7503.
Mr. Lott’s actions have implemented those words. In October 1998, he
traded 17 judges for Mr. Clinton’s signature on an appropriations bill.
Last fall, he broke his promise to conservative grass-roots leaders not
to allow votes on two controversial appeals court nominees after the
Senate confirmed a friend of his to the Tennessee Valley Authority
board. Last February, Mr. Lott rebuffed the effort by 18 of his
Republican colleagues to block Clinton nominees after Mr. Clinton
nominated Bradley Smith, Mr. Lott’s choice, to the Federal Election
Commission. Mr. Lott recently traded 16 judges and 43 other appointees
for Mr. Smith’s confirmation. It’s no wonder the Democrats are again
threatening to hold appropriations bills hostage in exchange for a
judicial ransom; they know how to make Mr. Lott dance to their tune.
In his first two years in office, under a Democratic Senate, Mr.
Clinton pushed some of his most radical nominees. In his last year in
office, under a compliant Republican Senate, he is doing the same thing.
As of Aug. 1, these nominees include Bonnie Campbell, former attorney
general of Iowa and now an official in the Clinton Justice Department.
Nominated to the U.S. Court of Appeals for the Eighth Circuit, Campbell
believes in almost unlimited federal government power. The Supreme
Court recently struck down the Violence Against Women Act, the very
program Campbell has been promoting at the Justice Department, because
it allowed federal civil lawsuits over local crimes. Campbell — a
delegate to the radical U.N. World Conference on Women in Beijing, China
— opposes even parental notification when minors have abortions, and
opposes the death penalty.
President Clinton has nominated Kent Markus to the U.S. Court of
Appeals for the Sixth Circuit. Markus’ liberal pedigree includes
service as Chief of Staff for the Democratic National Committee, Deputy
Chief of Staff for Attorney General Janet Reno, and board member for
Planned Parenthood of Cleveland, NARAL Ohio, Handgun Control Federation
of Ohio, and the ACLU of Ohio. Markus criticized efforts to prosecute
violators of federal gun laws, opposed the Communications Decency Act
which limited online obscenity, and has accused Christian conservatives
of “intolerance” and “hatred.”
The deal trading Mr. Smith for 16 judges is particularly revealing.
In 1989, the Dallas Cowboys received a dozen draft picks and players in
exchange for sending Herschel Walker to the Minnesota Vikings. As a
result, the Vikings went in the tank and took a decade to recover while
the Cowboys won three Super Bowls. Future Vikings owner Red McCombs said
at the time: “How do you give away your team? How do you give away your
future?” Americans are asking Senate Republican leaders the same
Thomas L. Jipping, J.D., is director of the Free Congress Foundation’s Judicial Selection Monitoring Project. Readers can obtain more information about the foundation and this issue at