Daschle’s duplicity

Senate Majority Leader Tom Daschle told President Bush on Oct. 22 that Mr. Bush needed judges confirmed more than Senate Democrats did. He told the truth, but only half of it. The rest of it is that Senate Democrats like the judges they have and don’t want new ones messing up a good thing.

(As readers of this column know, a partisan label based on the appointing president is the easiest, though not the most accurate, way of evaluating judges or the judiciary. The kind of judge someone is, rather than the president who appointed him, is most important – restrained judges follow the law and activist judges make the law. Since nearly all Democrats are activists and most Republicans are restrained, partisan labels often work well enough. The real situation is actually worse because Republican presidents appoint far too many activist judges.)

President Bill Clinton achieved a 374-1 confirmation run despite facing an “opposition” Senate for six of his eight years in office. He came within five appointments of beating President Ronald Reagan’s all-time record – achieved with a Senate of his own party for six of his eight years in office. As a result, more than 56 percent of all full-time federal judges today are Democrat appointees.

Two-thirds of the 31 vacancies on the all-important U.S. Court of Appeals were created by the departure of Republican appointees. As more Reagan judges retire, the percentage of Clinton judges among those who remain only grows. Because federal appellate judges consider cases in randomly chosen three-judge panels, this trend means more and more of those panels will have Democrat majorities.

A few specific examples tell the story. The Sixth Circuit covers Michigan, Ohio, Kentucky and Tennessee. By the end of 2001, half of its 16 full-time positions will sit vacant and six of the eight remaining judges are Democrat appointees. The Ninth Circuit, nearly twice as large as any other, covers 11 states and territories and has three vacancies. After Mr. Clinton filled 14 of its 28 full-time positions, 72 percent of the current full-time judges are Democrat appointees.

Well, you might say, at least the current Supreme Court seems pretty sensible and has (with a few aberrations) handed down some good decisions. The Supremes can always correct those errant appeals courts that wander off into left field. Yet the Supreme Court only accepts about 1 percent of the thousands of appeals it receives each year, averaging about 85 decisions per term. That’s close to half of what the Court was issuing 15 years ago.

This is the way it should be. The Supreme Court is part of a judicial system, it is not the judicial system. Each of the three tiers has a particular role, and the tribunal at the top does not exist merely to re-think and second-guess everything done below. The Supreme Court is an umpire, settling disputes between appeals courts – disagreeing on the same legal question – and answering uniquely profound questions about federal law.

All this means that those appeals courts are the last word on more than 99 percent of the cases in the federal system. It’s no wonder, then, that Senate Democrats are keeping the brakes on the confirmation process for Mr. Bush’s judicial nominees. Keeping Mr. Bush’s nominees off the bench lets the percentage of Democrats among full-time judges climb, with more and more cases decided by liberal, activist judges.

As even the liberal New York Times reported at the time, the Democrat Senate majority in 1992 refused to consider the first President Bush’s nominees, keeping positions open so Mr. Clinton could fill them. Now the Democrat majority is refusing to consider the second President Bush’s nominees so that Mr. Clinton’s judges can have more influence.

This also explains the confirmation hypocrisy by Democrat Senators such as Michigan’s Carl Levin. In a press release from his office dated May 24, 2000, Mr. Levin decried the then-four Sixth Circuit vacancies. He warned this was “causing undue delays for citizens served by the Court and unconscionable delays for nominees awaiting a hearing.” The Senate, he said, “should not be playing politics with the federal judiciary.”

Mr. Levin pushed hard last year to fill just four vacancies, yet this year he’s preventing consideration of nominees to any of the soon-to-be-eight vacancies on that court. He doesn’t care about vacancies, “delays for citizens,” or any of that. He wants the vacancies – no matter how many – filled with activist judges. He does not want the vacancies filled with restrained judges. Plain and simple.

Which brings us back to Mr. Daschle flipping off President Bush. While Mr. Bush was focusing on the vacancies, Mr. Daschle was focusing on the judges still on the bench. Mr. Bush wants to fill those vacancies because his nominees are restrained; Mr. Daschle wants to keep those vacancies open because the nominees aren’t activist.

Restrained judges let the people govern, activist judges do it for them. The current confirmation struggle is the same as it’s been all along, whether the people or judges will run the country. As Humpty Dumpty said to Alice, “the question is which is to be master – that’s all.”