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Recent research has exposed the liberal bias of the American Bar Association in evaluating candidates for nomination to the federal bench. The media establishment is just as biased.

Standing today at 107, judicial vacancies have not been higher since March 1994. The Administrative Office of the U.S. Courts considers 40 of these vacancies “judicial emergencies” because they have been open so long or because the workload on those courts is so high.

President Bush is doing his part, sending his first judicial nominees to the Senate months earlier than previous new presidents. They are highly qualified; even that liberal, biased ABA has given them all good ratings. Even so, the Democrat Senate has confirmed just four of his 44 nominees so far this year.

So at least the title of the liberal Washington Post’s Aug. 12 editorial – “Time for Some Judges” – seemed welcome indeed. After all, the Post had aggressively dogged the Republican Senate in recent years for supposedly blocking Clinton nominees.

On Sept. 8, 1998, with just 72 judicial vacancies, for example, the Post said the Senate “should not shirk its constitutional obligation either to consent to the president’s nominees or reject them.”

On Sept. 1, 1999, the Post again said, “While the Senate is entitled to reject a nomination, it is highly improper for it either to refuse or to neglect to perform its constitutional obligation to consider them.” The Post blasted the Republican Senate’s confirmation record, noting there had been just 11 confirmations so far that year and that 68 judicial positions were then vacant.

And just three weeks later, the Post editorialized that “the Senate ends up abdicating responsibility when the majority leader denies nominees a timely vote.”

With vacancies more than 50 percent higher and confirmations so far this year nearly 70 percent lower, the Post was now saying it is “time for some judges.” Maybe, just maybe, here was some fairness and non-partisanship.

Not so fast.

The editorial’s opening sentence said nothing about judicial vacancies, nothing about the Senate’s constitutional obligation to process nominees, nothing about the burgeoning caseloads in courts around the country. In fact, it said nothing about Senate Democrats at all but, as if this were still 1998 or 1999, attacked Senate Republicans. Old habits die hard. Though Republicans no longer run the judicial confirmation process (they really didn’t run it while in the majority either, but that’s another column), still the Post attacks them: “The position of Senate Republicans on judicial nominations is steeped in sanctimony. … [T]hey have spent the months since President Bush’s election howling with rage that Democrats might do as they did.”

It’s tough to imagine Republicans howling with rage about anything, but this nonsense just isn’t true. Democrats have always been more aggressive than Republicans in the confirmation process. Democrats have denied more nominees Judiciary Committee hearings, defeated more nominees in committee, filibustered more nominees and refused full Senate votes on more nominees. Last year, the Republican Senate closed the Clinton presidency by sending back 42 judicial nominees they did not or could not consider. In 1992, the Democrat Senate closed the Bush presidency by sending back 55 nominees.

When Democrats run the Senate, they confirm an average of 65 Democrat nominees and 47 Republican nominees per year, a partisan differential of 18. When Republicans run the Senate, they confirm an average of 49 Republican nominees and 41 Democrat nominees per year, a partisan differential of just eight.

But I digress with the facts.

In that Sept. 1, 1999, editorial quoted above, the Post said that 11 confirmations and 68 vacancies was “a record Senators would do well to alter.” Now, with only four confirmations and 107 vacancies, the Post says these “apparently ominous numbers are somewhat deceptive.” While the first paragraph attacked Republicans for their slow confirmation pace in the past, the second paragraph makes excuses for Democrats’ slower confirmation pace in the present.

Poor Sen. Leahy, the Post coos and clucks, he’s had a lot of other things to do. He’s doing his best. The Post never mentions this is the same Sen. Leahy who supported filibusters against Republican nominees in the 1980s. The Post never mentions Leahy’s vow to hold only one nominee hearing per month with no more than three nominees per hearing. The Post never mentions that Republicans included an average of nearly six nominees per hearing during the last few years of their majority.

The Post does set out a “rough test” for Leahy and the Democrat majority: “whether a year from now, any of the nominees before his committee are still waiting to be considered and whether – in that time – the number of vacancies has dropped substantially.” Don’t bet on it. The last time a Democrat Senate faced a first-year Bush presidency, it set the modern record for the fewest judicial confirmations, approving just 15 in 1989. Democrats are on track for breaking that record this year.

Here’s a “rough test” for the Post in its begrudging, teeth-grinding effort to at least appear balanced. In May 1998, the Post called the 38 percent vacancy rate on the U.S. Court of Appeals for the Second Circuit a “crisis.” It editorialized that “one might expect the Senate leadership to act speedily to confirm the … nominees … already named” to fill some of them. Well, the U.S. Court of Appeals for the Sixth Circuit has the same vacancy rate today and President Bush has made nominations to fill some of the empty positions. Will the Post call upon the Senate leadership “speedily to confirm” them?

Don’t hold your breath.

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