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As expected, Senate Democrats are continuing their scorched-earth campaign to block President Bush’s judicial nominees. With judicial vacancies at 107 and rising, the real question is who will provide the leadership necessary to get the Bush nominees confirmed.

It won’t be Sen. Trent Lott, the nominal Republican leader. He’s already shown he is either incapable or just not interested.

When the Senate confirmed Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit on July 20, Lott was the lone negative vote. He said he was voicing his opposition to the recess appointment President Clinton used last year to temporarily install Gregory on the appeals court. Sounds like a principled stand, right?

Wrong.

Lott once had an opportunity, as majority leader, to take real action on this issue that would have produced real results. Clinton had routinely abused his recess appointment power by waiting for Senate recesses to install people the Senate had chosen not to confirm. He used it to evade the Constitution’s confirmation requirement, defying the Republican Senate and daring them to do something about it.

On June 4, 1999, during the Senate’s Memorial Day recess, Clinton installed homosexual activist James Hormel as ambassador to Luxembourg without Senate consent. With such an in-your-face challenge to a fundamental Senate prerogative, one would expect the Senate leader to lead the response. When Senate Democrats believed President Reagan was abusing his recess appointment authority in 1985, it was Democrat leader Robert Byrd who took action.

Lott was nowhere to be found. Strike one. It was Sen. James Inhofe who took action. He threatened to block future presidential appointments unless Clinton agreed to give the Senate advance notice of contemplated recess appointments. Clinton signed a letter to Lott dated June 15, 1999, promising to do so. This was the same arrangement that Byrd forced Reagan to follow in 1985.

OK, so Lott shirked his leadership responsibility in not responding to Clinton’s abuse of power. The next best thing was for him to voice support for his fellow Republicans who did take action. Though asked repeatedly whether he supported this effort by Inhofe, Lott remained silent. Strike two.

Clinton, of course, is a liar who does not keep promises; so Inhofe and 16 other senators additionally promised to block future judicial appointments if Clinton violated his agreement. He did so just days later, appointing two individuals during the Senate December 1999 recess without Senate approval.

The stakes were enormous. Never had Senate Republicans staked out so clear a position on such a specific issue, with such a concrete promise to defend so clear a principle. Yes, Lott had failed to exercise leadership himself and, yes, he had been silent when Inhofe put his plan into motion. Now, however, Clinton had broken his agreement. That agreement had been with Lott, not with Inhofe. Lott’s responsibility as Republican leader was clear.

His silence, however, had been the signal Clinton needed. On Feb. 9, 2000, he nominated Lott’s choice for the Federal Election Commission, a law professor who advocates repealing statutory limits on campaign contributions. The next day, Lott announced he would oppose his fellow Republicans’ effort to hold Clinton accountable for his abuse of power.

Strike three.

When it counted, when his action could have produced results, Lott cut and ran. That opportunity was real; supporting his fellow Republicans would have imposed actual consequences for abusing presidential power and would have defended a fundamental constitutional principle. Yet instead of standing up to a corrupt Democrat president who had abused the Constitution, Lott was bought off with the nomination of a single term-limited bureaucrat.

Now, when it did not count at all, when his action had no possibility of producing real results, Lott cast the lone vote against Gregory, standing up to a Republican president who had properly followed the Constitution.

The need for Republican leadership remains, whether or not Lott is up to the task. Bush sent his first nominees to the Senate more than two months earlier than previous new presidents and more than two dozen sit waiting for action. Senate Democrats are vowing to process fewer nominees than necessary even to keep up with judicial retirements.

In addition to Inhofe, who had already demonstrated he will step into a leadership gap on judicial appointments, other Republicans are stepping up to the plate. Sens. Jon Kyl and Larry Craig recently forced action on some presidential appointments. Kyl serves on the Judiciary Committee and is chairman of the Republican Steering Committee. Craig is chairman of the Republican Policy Committee. In a July 23 colloquy on the Senate floor, they revealed how the Senate had confirmed just 58 percent of all Bush nominees, far less than when Clinton or Reagan replaced appointees of the other party.

In addition, they quoted Judiciary Committee chairman Patrick Leahy from January 1998 (with fewer than 85 vacancies) saying, “Any week in which the Senate does not confirm three judges is a week in which the Senate is failing to address the vacancy crisis. Any fortnight in which we have gone without a judicial confirmation hearing marks 2 weeks in which the Senate is falling further behind.” They quoted Majority Leader Tom Daschle from March 2000 (with 76 vacancies) saying, “The failure to fill these vacancies is straining our Federal court system and delaying justice for people all across this country. This cannot continue.”

Neither can the vacuum in Republican leadership. With 49 percent of all full-time federal judges appointed by Clinton, Bush has a long road ahead in re-balancing the judiciary. He is nominating judges who will follow the law and Republican leadership is required to get them appointed. Lott’s fake stunt voting against the Gregory nomination is not simply too little, too late, it is nothing at all.

Americans must instead look to senators such as Inhofe, Kyl and Craig to fill the gap.

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