Imagine it is a presidential election year. With different parties
controlling the White House and the Senate, the process of appointing
federal judges is a little tense. According to the New York Times, the
party controlling the Senate has in the past been "determined to bury"
the president's nominations because they are "too precious to give up,"
and often kills nominations by denying them Judiciary Committee
hearings. This year the Senate majority is keeping vacancies open,
hoping its nominee will be elected in November, and 59 nominations
expire when the Senate adjourns for the year.
The year is 1992. A Republican is in the White House and Democrats
control the Senate. A Democrat does win the presidency and, by
inauguration day 1993, more than 110 vacant judicial positions await his
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Fast forward to the current presidential election year. Democrats
and their media allies routinely accuse Senate Republicans of blocking
President Clinton's nominees and say that the confirmation process this
year should follow the 1992 pattern. They may want to think again.
Far fewer unconfirmed nominees are in different stages of the
confirmation process today than in 1992. Little wonder that Democrats
never mention the 59 nominees of President Bush they refused to confirm
in 1992, or compare that record to the 37 nominees in the process today
(32, if you don't count individuals nominated in just the last few
weeks). Instead, they point to the 66 nominees they did confirm in
1992. But liars figure and figures lie.
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Judicial vacancies were much higher when Democrats ran the Senate in
the early 1990s, topping 100 for 40 straight months. Higher vacancies
obviously create pressure for more confirmations. By contrast, only 63
vacancies exist today, exactly the level that the Clinton Justice
Department has said amounts to "virtual full employment" for the
judiciary. Instead of pulling random numbers out of the air, as is the
Democrats' habit, a more useful test is to evaluate annual confirmations
as a percentage of the vacancy level at the beginning of the year. The
confirmation-to-vacancy rate this year is already 49 percent, almost
identical to the Democrats' 51 percent rate in 1992, the year they say
should serve as the benchmark. All right, then, it seems the Democrats'
own criteria mean confirmations should stop rather than accelerate.
Democrats, not Republicans, have recently blocked confirmation of
more Clinton judicial nominees. The majority offered to confirm four
more nominees to the U.S. District Court, bringing the GOP's
confirmation-to-vacancy ratio this year to 54 percent and topping the
Democrats' performance in 1992. No, that was not enough for the
Democrats, who objected to bringing those nominees up for a vote at all.
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The confirmation facts speak for themselves. Mr. Clinton has a 369-1
judicial appointment record. He has appointed 47 percent of all the
judges in full-time service. He has appointed judges at a faster rate
than President Reagan, who even had a Senate of his own party for six of
his eight years in office. More full-time judges today were appointed
by Mr. Clinton than by Mr. Reagan and Mr. Bush combined. Vacancies
averaged 116 when Democrats ran the Senate, but have averaged 71 since
Republicans took over. Vacancies have been higher than today in just 22
of the 117 months (or 81 percent of the time) since Congress last
significantly expanded the judiciary.
Democrats have long been far more aggressive in promoting the kind of
activist, political judiciary that undermines our freedom than
Republicans have been in promoting the restrained, balanced judiciary
America's founders intended. Democrats have filibustered more nominees,
defeated more nominees in the Judiciary Committee, and refused to take
final Senate votes on more nominees than Republicans ever have.
As a result, activist judges dominate the federal bench. Clinton
judges, for example, have ruled that school boards cannot begin meetings
with prayer and voters cannot impose term limits even on state
legislators. Clinton judges have ruled that young thugs have a
constitutional right to roam the streets all night without supervision,
that abortion clinics need not observe the same health and safety
standards as other medical facilities and that drunks cannot be required
to attend Alcoholics Anonymous because it is a "religious" program. A
Clinton judge recently ruled that a foreign homosexual cross-dresser is
a member of a "social group" allowing him to seek political asylum in
the United States.
A 1997 resolution adopted by Senate Republicans said such judicial
activism "threatens the basic democratic values on which our
Constitution is founded." Indeed it does. It strips from the people
the power to govern themselves and to define the culture.
Enough is enough. Confirmations have been high, vacancies are low,
the damage has been done. In the closing days of the Clinton
presidency, Senate Republicans should finally act on their own words by
refusing to confirm more Clinton activist judges. Let the people decide