President Bush has sent the Senate 11 nominees for positions on the U.S. Court of Appeals. Under the standards Democrats urged for Clinton nominees, they should be quickly and unanimously confirmed.
According to the Administrative Office of the U.S. Courts, 31 of the current 100 judicial vacancies are on the U.S. Court of Appeals. Eight of the 11 positions Mr. Bush seeks to fill with these first nominees have been open so long they are dubbed "judicial emergencies." Back on October 21, 1998, when there were just 69 total vacancies, Sen. Patrick Leahy, D-Vt., praised President Clinton for sending "qualified nominees for [some] of the current judicial emergency positions" and urged his colleagues quickly to approve them.
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President Bush has done the same thing, and Sen. Leahy should similarly urge his colleagues quickly to approve them. Seven of the 11 nominees are currently sitting judges, five on the U.S. District Court and two on state supreme courts, with a total of nearly 60 years of judicial experience. Four have argued a total of nearly 70 cases before the U.S. Supreme Court. Four have served as law clerks to U.S. Supreme Court Justices as ideologically diverse as William Brennan and Antonin Scalia.
An October 2000 profile in Legal Times said that nominee John Roberts "is viewed by many as the best Supreme Court advocate in private law firm practice." Nominee Deborah Cook, last year re-elected to the Ohio Supreme Court, has a decade of judicial experience and spent 15 years in private practice. Last October, the Cincinnati Post called her "a clear-headed, intellectually rigorous jurist" and the Columbus Dispatch said that she "uniquely combines keen intellect, careful legal scholarship, and consistency in her opinions."
Nominee Terrence Boyle, currently Chief U.S. District Judge for the Eastern District of North Carolina, has 17 years of judicial and 10 years of private practice experience. Supreme Court Chief Justice William Rehnquist has appointed him to important committees of the Judicial Conference. Nominee Priscilla Owen, last year re-elected to the Texas Supreme Court, had 16 years of private law practice before joining the court in 1994. And nominee Michael McConnell has taught in prestigious law schools for more than 15 years, authored more than 50 law journal articles, and enjoys the support of even leading liberal legal scholars.
What should happen next? It's fair to look at how senators have in the past said the Senate should evaluate judicial nominees. It's fair to expect that senators will keep their word and not simply turn on a partisan dime and treat these nominees differently because they come from President Bush.
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Sen. Leahy, lead Democrat on the Senate Judiciary Committee, had a recommendation last year that seems reasonable. On July 21, 2000, he noted in a Senate floor speech that "Governor Bush of Texas recently also proposed that presidential nominations be acted upon by the Senate within 60 days." He then said, "If I could make a recommendation, I would join an unusual ally in that, Governor George W. Bush of Texas. Presidential nominations should be acted upon by the Senate within 60 days. … Governor Bush is right."
If this is a reasonable Democratic proposal for the timetable, what standards should senators use?
In April 1994, Sen. Joseph Biden, D-Del., then-Judiciary Committee Chairman, suggested these criteria in a Senate floor speech: "First, that the nominee has the capacity, competence, and temperament to be on the court of appeals or a trial court. Second, is the nominee of good character and free of conflict of interest? Third, would the nominee faithfully apply the Constitution and the precedents of the Supreme Court?" Sen. Tom Harkin, D-Iowa, similarly explained on Oct. 3, 2000, that the main question is "whether or not they were qualified -- not whether they were ideologically opposed to me or how I feel or what I believe."
Finally, should partisan politics interfere with judicial selection? Sen. John Edwards, D-N.C., offered the answer last October: "Whether it is a Democratic or a Republican administration, it shouldn't make any difference in nominating well-qualified judges. This body should act on the qualification of those men and women to serve on the court, not based upon the Republican or Democratic composition of the court. It is just that simple. This should be totally nonpartisan."
So Senate Democrats have been clear about how they believe judicial nominees should be handled. The Senate, they say, should act quickly to consider nominees, especially those to "judicial emergency" positions, and should focus on qualifications, temperament, and character rather than ideology or partisan considerations. Sounds like a good plan.