Next Wednesday, Chief Justice William Rehnquist will issue his annual year-end report on the judiciary for 2002. On the chance it might include comments on judicial confirmations, outgoing Judiciary Committee Chairman Sen. Patrick Leahy shamelessly tried to lobby Rehnquist in what Roll Call dubbed a “pre-emptive move to defend his own record.” That record really stinks, but Sen. Leahy should not try to make the chief justice his press secretary.
This was very manipulative for a senator once obsessed with judicial independence. When Republicans ran the Senate under President Clinton, Sen. Leahy saw threats to judicial independence lurking in the strangest places. When the chief justice criticized the slow confirmation pace during 1997, Sen. Leahy praised Rehnquist’s “eloquence” and objectivity. He warned that “an independent and fully functioning judiciary” should not “be held hostage by partisan politics.”
As a leader of the partisan obstruction campaign against President Bush’s nominees, Sen. Leahy perhaps has an interest in trying to spin the chief justice’s next report. A year ago, Rehnquist warned about “delays in the confirmation process” in the Democrat Senate during 2001. “The Senate,” he urged, “ought to act with reasonable promptness and to vote each nominee up or down.” The Democrats’ response? Their 2002 confirmation total did exceed their pathetic 2001 tally. But instead of taking a vote on “each nominee” as the chief justice asked, Democrats found ways of keeping the Senate from voting on nominees at all.
The Judiciary Committee, for example, can’t vote on a nominee who has not had a hearing. Of the 29 district and appeals court nominees stuck in the committee when the Senate adjourned on Nov. 20, only one had had a hearing. Guess who decides who gets a hearing? Sen. Leahy.
The Senate can’t vote on a nominee the Judiciary Committee has defeated. For the first time in a dozen years, the committee voted down a judicial nominee, and then did it a second time. Republicans never did that when they ran the Senate under President Clinton. And it’s been done only six times in 60 years, five of them in Democrat Senates. Even the infamous Ronnie White – the only Clinton nominee defeated in the full Senate – made it out of the Judiciary Committee.
Those crafty so-and-so’s confirmed enough district-court nominees to pad the overall numbers while keeping appeals-court nominees on the shelf. When the Senate adjourned, pending district-court nominees had been waiting an average of 102 days but pending appeals court nominees had languished for an average of 439 days.
President Bush did yeoman’s work to keep the pace moving, starting nominations months earlier than previous new presidents and sending a record number of nominees to the Senate. The Democrats hardly responded in kind. When the Senate adjourned 560 days after that first batch of nominations, fewer than half had been confirmed and more than a third never received a committee hearing. By contrast, the previous three presidents saw their first batch of nominees confirmed in an average of just 81 days.
The Confirmation Obstruction Index tells the story best. Better than a single statistic, it measures confirmation activity by dividing average vacancies by total confirmations over a period of time. High vacancies and low confirmations mean obstruction. Even with more nominees to work with, the Senate during the 107th Congress had an obstruction score 22 percent higher than when Republicans ran the Senate under President Clinton.
The better course next year will be for the Senate to choose action instead of propaganda. In his report on 2001, Chief Justice Rehnquist asked the Senate “to schedule up or down votes on judicial nominees within a reasonable time after receiving the nomination.” President Bush took this a step further on Oct. 30, 2002, by proposing a specific timetable: He will nominate within 180 days of an actual or intended vacancy and the Senate should take a final vote within 180 days of a nomination.
That’s far more generous than Mr. Bush’s campaign proposal that the Senate vote within 60 days of a nomination. Believe it or not, Sen. Leahy endorsed that idea just a month before the presidential election. (No wonder he’s trying to spin the chief justice.) The president intends to stick to his part of the plan, and doing so will mean nearly 90 nominees on the Senate’s plate by May. That will mean a clean slate – a fresh start – so that the chief justice’s report a year from now will be positive, no spin required.
