A truly rare event occurs today in the Senate: a Judiciary Committee hearing on President Bush’s judicial nominees.
Before today, only nine of 55 nominees had received a hearing. This hearing, examining one nominee to the U.S. Court of Appeals and four to the U.S. District Court, is the first to include anything near the number of Clinton nominees Republicans averaged per hearing when they ran the Senate.
For the last two decades, the Senate has each year confirmed an average of 32 nominees by Oct. 1. This year, Democrats have confirmed just six. They have their talking points ready, trying to weasel out of the obvious by claiming, for example, that confirmations in a new president’s first year are below average anyway.
True, but only because new presidents don’t begin nominating judges right away. President Reagan sent his first nominees to the Senate on July 9, the first President Bush on August 4, and President Clinton on August 6. In contrast, President Bush announced his first batch on May 9 and a record 44 by the Senate’s August recess. He quite wisely deprived Democrats of this standard excuse. No, the confirmation stall is simply the result of Senate Democrat policy.
Cheerleaders on the left make claims totally divorced from reality. The leftist Alliance for Justice, for example, claims in a September 2001 report that confirming just six judges this year means “Democrats have been putting nominees through at a very good pace.” With 109 of the 853 federal judicial positions empty and 49 nominees waiting for any kind of consideration, suggesting that a confirmation pace less than one-fifth the annual average is “very good” just doesn’t pass the sanity test.
This is the same Alliance for Justice which in December 1994 said 60 vacancies was “unacceptably high” and last December, after 35 confirmations had left just 67 vacancies, condemned “the low confirmation rate” resulting from “Senate obstructionism.”
The Alliance also claims that Democrats’ pathetic confirmation pace is “certainly better than their predecessors.” Yet when Republicans ran the Senate under President Clinton, each year they confirmed an average of 28 nominees by Oct. 1. In fact, the fewest Clinton nominees confirmed by this time in any of those years was 17, nearly three times what the Alliance now lauds as the Democrats’ “very good pace.”
The liberal American Bar Association is doing its part, delaying their evaluations so Democrats have the excuse that they cannot consider nominees without an ABA rating. Though the ABA told White House Counsel Alberto Gonzalez evaluations would take just a few weeks, it somehow took more than twice that long to produce unanimous “well qualified” ratings for appeals court nominees such as John Roberts, Miguel Estrada, and Priscilla Owen. Those ratings were done months ago, yet those nominees still wait for a hearing.
When he was in the minority, Judiciary Committee Chairman Patrick Leahy, D-Vt., said failing to hold hearings and votes meant the Senate was “not fulfilling its constitutional responsibility” and “interfering with the president’s authority to appoint federal judges.” He called it “a scandal in the making.” The scandal is now in full bloom under his chairmanship as he is changing all the standards used to consider Clinton nominees.
While pushing for confirmation of Clinton nominees, for example, one Leahy standard was that all nominees should receive Judiciary Committee hearings and Senate votes. Now, facing Bush nominees, he says he will only consider “consensus” or “non-controversial” nominees.
In January 1998, Senator Leahy set another standard that “any week in which the Senate does not confirm at least three judges is a week in which the Senate is failing to address the vacancy crisis.” Though vacancies are 31 percent higher today, the Senate has only met this Leahy standard once all year. With so few confirmations, that one week back in July produced half the entire year’s total.
In July 1998, Senator Leahy offered another standard, saying that the Senate “has not even kept up with normal attrition over the past two years, let alone taken the type of concerted action needed to end the judicial vacancies crisis. The numerous, longstanding vacancies in some courts are harming the federal administration of justice.” If the 68 vacancies then harmed the administration of justice, one wonders how Senator Leahy would describe the threat today, with vacancies 60 percent higher.
One of Senator Leahy’s standards, however, rings true even today. “The American people,” he said, “can easily measure our progress” on judicial confirmations. Indeed they can.
