Judicial meltdown

By Thomas Jipping

After last week’s Judiciary Committee rejection of appeals-court nominee Priscilla Owen, the judicial-confirmation process is in total partisan meltdown.

Committee Chairman Sen. Patrick Leahy’s partisan unfairness has reached a new low. He once said that judicial nominees with the support of both home-state senators would be considered quickly. He once said that the American Bar Association’s rating was the “gold standard” for evaluating nominees. He once said that long-standing vacancies must be filled promptly. He once said that 20 appeals-court vacancies constitute a “crisis.”

That was then, this is now. Justice Owen, a member of the Texas Supreme Court, had the strong support of Texas Sens. Phil Gramm and Kay Bailey Hutchison. She received a unanimous “well qualified” rating from the ABA. The position to which she was nominated has been designated a “judicial emergency” because it has been vacant for 2,059 days. Today’s 28 appeals-court vacancies are 40 percent more than Sen. Leahy’s “crisis” level. Yet, he led the Judiciary Committee to a partisan rejection of Justice Owen – the first time the committee has voted down a woman.

As chairman, Sen. Leahy decided to stall 440 days to grant Justice Owen a hearing. Then he had the gall to say he was “glad” Justice Owen was “able to have this hearing.” The previous three presidents saw their first batch of appeals-court nominees confirmed in an average of 81 days. Thanks to Sen. Leahy, after nearly 500 days, only five of President Bush’s first 11 nominees have even received a hearing.

And before last week’s execution, Sen. Leahy had the gall to say that, in confirming President Bush’s nominees, Democrats were “exceeding the pace” of Republicans during the Clinton years. A Democrat Senate confirmed 128 judges during Democrat Bill Clinton’s first two years but only 74 for Republican George W. Bush. That partisan divide is even deeper because Mr. Bush starting making nominations earlier and set a record nomination pace.

The picture on the U.S. Court of Appeals is even worse. Mr. Bush made 45 percent more appeals-court nominations than Mr. Clinton, with less than half the confirmation rate. As a result, vacancies have averaged 50 percent higher under Mr. Bush than under Mr. Clinton. Here’s another way of looking at it: The appeals-court vacancy rate topped 15 percent in just two of Mr. Clinton’s 96 months, but has remained above 15 percent in all but one month since Mr. Bush took office.

While the partisan assault on Justice Owen was part of this broader obstruction campaign, the Judiciary Committee’s rejection last week was still unprecedented. It was the first rejection of a nominee receiving a unanimous “well qualified” rating from the American Bar Association. And for those who count such things, it was the first time the Judiciary Committee rejected a woman.

According to the Congressional Research Service, the Judiciary Committee has only six times in 60 years – five under Democrat control – prevented the full Senate from acting by voting down a nominee. Half of them, Priscilla Owen and Charles Pickering this year and Kenneth Ryskamp in 1991, involved a Democrat-run Judiciary Committee rejecting a Bush nominee to an appeals-court bench in the South. Do you see a pattern here?

And yet, Senate Democrats still carp about Republican treatment of Clinton nominees. But for all the complaining, Mr. Clinton’s appointment tally was an astounding 374-1, just five less than President Reagan’s all-time record. Even district-court nominee Ronnie White, the only Senate defeat, made it out of the Judiciary Committee. In six years under Mr. Clinton, Republicans never voted down a nominee in the Judiciary Committee.

Where will things go from here? It appears that next week, the Judiciary Committee will level its guns at another appeals-court nominee, Miguel Estrada. He, too, has waited nearly 500 days for a hearing, received a “well qualified” ABA rating, and is nominated to a seat vacant for years. Will he be the first Hispanic voted down by the Judiciary Committee? If so, count on Sen. Leahy to claim anew that he’s confirming judges at a record pace.