Hijacking the president

“We owe it to Americans across the country to give these nominees a vote. If [Senators] don’t like them, vote against them. But give them a vote.” That was Democrat Senator Ted Kennedy’s view in February 1998 with a Democrat in the White House, Republicans running the Senate, and 81 judicial vacancies. Today, with a Republican in the White House, Democrats running the Senate, and 109 judicial vacancies, the silence from Senator Kennedy and other Democrats once urging faster confirmations is deafening.

Looking behind the general national numbers to some specific regional situations reveals the partisan strong-arm tactics driving the Democrats’ confirmation-obstruction campaign.

The national picture indeed gets worse by the day. In his January 1998 report on the state of the federal judiciary, Supreme Court Chief Justice William Rehnquist warned: “Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary.” The “high” vacancy level to which he referred was 83. Today vacancies are more than 30 percent higher, the highest level in nearly eight years.

Chief Justice Rehnquist faulted both the president and the Senate for dragging their feet back then. Today, however, the fault lies squarely and solely with the confirmation side of the process, that is, with Senate Democrats. President Bush sent his first judicial nominees to the Senate months earlier than previous new presidents, a record 44 by the Senate’s August recess, and an astounding 59 to date. While the Senate has confirmed an average of 32 nominees by Oct. 1 over the last two decades, this year the Democrats have allowed just six.

A more specific look at the Midwest shows the unprincipled tactics driving this national campaign. The U.S. Court of Appeals for the Sixth Circuit includes Michigan, Ohio, Kentucky, and Tennessee. Seven of its 16 full-time judicial positions are already empty, with another set to open up by the end of the year. Democrats are OK with a virtually unprecedented 50 percent vacancy rate on this very busy court because six of the eight full-time positions left by year’s end will be Democrat appointees. They will dominate the court’s decisions in the hundreds of cases already on the docket, including dozens of death penalty appeals.

In a letter to Senate leaders dated March 20, 2000, then-Sixth Circuit Chief Judge Gilbert Merritt decried the Senate’s failure to consider nominees for any of the four vacancies then on his court. He wrote: “Our Court should not be treated in this fashion. The public’s business should not be treated this way.” The situation, he wrote, was “rapidly deteriorating.” Vacancies, already 75 percent higher today, will soon be twice that deteriorating level. Curiously, neither Judge Merritt (no longer in full-time judicial service) nor Judge Martin Boyce, his successor as chief judge, have publicly protested this higher vacancy level now that President Bush is making nominations and Democrats run the confirmation process.

In Michigan, where four of the vacant Sixth Circuit positions are based, the Detroit News editorialized in August 2000 that every judicial nominees deserves a hearing within “a reasonable time frame.” Only 60 vacancies existed then; with vacancies 82 percent higher today, the paper should be pressuring Michigan Democrat Sen. Carl Levin, because he is the main culprit in the Sixth Circuit debacle.

Senator Levin is blocking confirmation of nominees to any Sixth Circuit vacancy, even in states he does not represent. Back in May, for example, the president nominated two outstanding individuals to fill the vacancies based in Ohio. Neither Deborah Cook, a distinguished member of the Ohio Supreme Court, nor Jeffrey Sutton, former Ohio solicitor general, have even received a hearing.

Senators sometimes block confirmation of individuals to vacant positions in their own state. Though Democrats once loudly condemned Republicans exercising this prerogative, they are indeed using it now to their advantage. In the Fourth Circuit, for example, Democrat Senator John Edwards is blocking confirmation of President Bush’s nominee to a position in North Carolina. Shutting down an entire circuit, as Senator Levin is doing, has no precedent. He is demanding that the president nominate to Michigan vacancies two left-wing individuals President Clinton had nominated but the Senate did not confirm. The Bush administration has signaled they will not resurrect these Clinton “disappointees.”

The Constitution gives the president the power to nominate and the Senate the job of confirming federal judges. Democrats are turning this system on its head, with Senators like Levin blocking the Senate’s assigned confirmation role in order to hijack the president’s nomination power.

President Clinton quoted the Chief Justice’s vacancy warning in his 1998 State of the Union Address. It was Exhibit A in the Clinton administration’s push for more confirmations. President Bush should today follow that page from the Clinton playbook. He and the Republican Senators representing each of the other Sixth Circuit states should make filling those vacancies a top priority.