Minority-party Machiavellians

By Thomas Jipping

The leftist campaign to block President Bush’s judicial appointments was on the Nov. 5 ballot, and it lost.

On orders from their leftist bosses, Senate Democrats oppose judges who will let the people run the country and define the culture. While they once kept their tactics below the radar, with majority status the Democrats last year made their obstruction campaign a very public, in-your-face, high-stakes priority.

The first shot across the presidential bow came when Democrats mustered 42 votes against John Ashcroft’s nomination to be attorney general. Sen. Charles Schumer, D-N.Y., warned: “I hope … that we will not have to go through a similar battle when Supreme Court nominees come before us.” Then-and-future Minority Leader Tom Daschle said that “40-plus” votes against Ashcroft “would be the strongest statement I think we could make.” That’s because 41 votes is enough to kill a nomination by sustaining a filibuster.

Sen. Daschle vowed that Democrats would “use whatever means necessary” to defeat nominees they don’t like, and they have done so. Leading political and academic leftists helped Senate Democrats strategize for changing the judicial confirmation rules. Schumer chaired hearings on politicizing judicial selection and using ideological litmus tests to defeat Bush nominees. Democrats no longer credited support by a nominee’s home-state senators. Highly qualified appeals court nominees such as Dennis Shedd, Deborah Cook, Jeffrey Sutton and Michael McConnell have both their senators’ support, yet have languished in the Judiciary Committee for 18 months.

“Whatever means necessary.” While Republicans never defeated a Clinton nominee in the Judiciary Committee, Democrats did it twice this year alone. In fact, five of the six times that has happened in the last 60 years have been in a Democrat Senate. Oh, by the way, both defeated nominees Charles Pickering and Priscilla Owen had their home-state senators’ support.

“Whatever means necessary.” The Senate has confirmed 80 judges in President Bush’s first two years, compared to 129 for President Clinton. The confirmation rate for President Bush’s appeals court nominees is 55 percent less than his three predecessors. Those presidents saw their first batch of appeals court nominees confirmed in an average of 81 days. After 538 days, two-thirds of President Bush’s first nominees are still stuck in the Judiciary Committee.

While Americans tossed out the party driving this very public campaign, Sen. Daschle’s promise to use “whatever means necessary” lives on. The leftist obstruction campaign will merely retreat into the hills and re-tool, using guerrilla tactics instead of a frontal assault. That means the “F” word: filibuster.

True, Democrat leaders denounced nominee filibusters when President Clinton was choosing the nominees. In June 1995, Daschle opposed nominee filibusters, saying, “The question … is one of fairness. … It is a question of fairness. … [T]he issue … is one of fairness. … It is a question of fairness.”

On the Judiciary Committee, soon-to-be-ranking-member Patrick Leahy, D-Vt., said in September 1999, “I … oppose filibusters to hold [nominees] up and believe that we should have a vote up or down.” Judiciary Committee member Edward Kennedy, D-Ma., urged his colleagues to “once and for all, put behind us this filibuster procedure on nominations.”

Returning Sen. Frank Lautenberg, D-N.J., called nominee filibusters “pitiful.” Outsider Sen. James Jeffords, I-Vt., said they are “indefensible.” And Sen. Barbara Boxer, D-Calif., said nominee filibusters make her “disheartened and, frankly, disgusted.”

Blah, blah, blah. Actions speak louder than words. Before they denounced filibusters against Democrat nominees, Senate Democrats used them against Republican nominees to all three levels of the judiciary. More than three times as many Democrats as Republicans vote to continue their nominee filibusters. These people are serious. And in case Republicans did not catch the filibuster-related significance of the 42 votes against Ashcroft, 47 Democrats voted against Ted Olson’s nomination to be solicitor general three months later.

The GOP now has the opportunity to solve the judicial vacancy crisis by dropping the confirmation blockade and fairly and efficiently processing President Bush’s nominees. Seizing the day, however, will require a strategy for dealing with the “whatever means necessary” Democrats will continue to use.