Judges Delayed
EDITORIAL Judges Delayed May 9 is an anniversary worth noting: Last year on that date, President Bush sent Congress the names of 11 judicial nominees for the U.S. circuit courts of appeal. One...
...Most district nominees are being confirmed two to five months from the date of their nomination...
...The failure to hold timely hearings is doing the bench no good...
...Terry Eastland, for the Editors...
...Because very few cases now reach the Supreme Court, the 13 appeals courts effectively function as mini-Supreme Courts...
...Only one from last year hasn't been confirmed...
...One year later, 3 of them—including 2 Democrats named as a conciliatory gesture—have been confirmed by the Democratic Senate...
...Everything else has followed...
...And the right kind of campaign in some cases will entail making judges an issue...
...The White House and Senate Republicans point to the Hearingless 8 to show that the Democratic Senate has dragged its feet unjustifiably in assessing the president's judicial nominees...
...And so, too, may be the future of the Supreme Court...
...A case in point: Last week, all 49 Republican senators signed a letter to Leahy asking for an explanation of his "blue-slip" policy...
...Make no mistake: The future of the appeals courts is riding on the midterm elections...
...The Senate has confirmed 43 district judges and 9 circuit judges—a total of 52...
...That nominee, Paul Cassell, nominated for a seat in Utah, was finally voted out of committee last week, along with 5 more recent nominees...
...There is also the judiciary itself to consider: Twenty percent of the seats on the appeals courts are now vacant, and many of these have been designated "judicial emergencies" by the Judicial Conference of the United States...
...But maybe not, which is why it is important to keep insisting that hearings for the circuit nominees be held now...
...The 6th Circuit has 16 seats, half of them vacant...
...Indeed, you can precisely identify the Jeffords effect: Soon after his nomination to the D.C...
...Clinton's nominees, had they been confirmed, likely would have shifted their courts leftward, thus making the Bush project of moving them rightward that much harder...
...Senator Patrick Leahy, chairman of the Judiciary Committee, maintains to the contrary that he's been "moving faster on judges than the Republicans ever did for President Clinton...
...Such compromise, however, would rightly be seen by the Republican base as betraying the president's campaign promises...
...The last election gave us one—by a single vote...
...Last fall Bush announced 7 more circuit nominees...
...To exercise it, they pass a negative "blue slip" to the chairman...
...November 5 is the date of the midterm elections...
...That it was Gibbons who got a hearing is instructive, since she is perceived as one of the more moderate circuit nominees...
...In all, President Bush has made 100 nominations to the federal bench, 69 to the district courts, 30 to the circuit courts of appeals, and one to the court of international trade...
...President Bush on Friday sounded the alarm about a "vacancy crisis" on the federal bench...
...Hearings are past due not just for the 8 who have been patiently waiting a year...
...They'll also have to hold Republican seats subject to potentially strong challenges—right now, those in New Hampshire, Arkansas, and Colorado...
...The only way out for Bush is a Republican Senate...
...Charles Pickering...
...And they'll have to pick up at least one Democratic seat, with South Dakota, Missouri, Iowa, Georgia, and Minnesota offering the best chances...
...We'd like to think that Senate Democrats would by now have heeded these arguments, insistently made by such non-Republican organs as the Washington Post...
...Circuit), Priscilla Owen (5th Circuit), and Michael McConnell (10th Circuit)—but not for the other 5. He also has said, "I look forward to where we are by July 10 of this year," when a year will have passed since he had "a fully organized committee and could start hearings...
...Bush's 30th circuit nominee was announced last week...
...The failure to hold reasonably prompt hearings for nominees with home-state support and their paperwork complete shows disrespect for the president's role in nominating judges...
...Of the remaining 8, not one has been so much as scheduled for a hearing...
...Maybe by then Leahy will have convened hearings for the bulk of Bush's circuit nominees...
...The 10 Democrats on the Judiciary Committee stand united against any such movement...
...The remaining 20 nominees—all of them sent up since late January—are in various stages of the confirmation process...
...Just 2 have had hearings, and the other 5—their paperwork also complete—have yet to have hearings scheduled...
...Both sides brandish statistics to prove their case, but Republicans have the better argument, especially when it comes to those first nominees...
...But for Jeffords's switch, the story on judges would be very different...
...But it was struck from the calendar once the Democrats took control...
...To win back the Senate, Republicans will have to hold the seats being vacated by Phil Gramm, Fred Thompson, Jesse Helms, and Strom Thurmond in, respectively, Texas, Tennessee, North Carolina, and South Carolina...
...Of course, if Bush were to compromise on philosophy and name candidates pleasing to the Democrats, he might see faster movement...
...The Senate has the authority to reject a nominee, but to fail even to hold a hearing suggests the president might as well be doing something else...
...Eleven await review by the American Bar Association, which the committee requires before a hearing can be held...
...Confirmed, with some Democratic support on the floor...
...Which is to say they are more important than ever before...
...For the most part, the processing of district nominees has given the Republicans little cause for complaint...
...The Democrats' opposition has a substantive component: They resist judges they regard as threats to abortion rights, race preferences, the strictest separation of church and state, and unlimited congressional power...
...Through his powers to nominate and appoint, President Bush wants to move the appeals courts to the judicial right, a shorthand term that begs for definition but which, for present purposes, suffices...
...And their opposition has a revenge component: They are loath to confirm Bush nominees to vacancies Clinton nominees were designated to fill but never did thanks to Republican opposition—which blocked hearings in some cases for years...
...Chairman Leahy and his Democrats will hold hearings, if they must, for nominees like Gibbons, but consistently postpone action on those they see as more conservative, like the Hearingless 8. The question facing Bush is what can be done to make committee Democrats hold hearings posthaste and confirm his nominees...
...Committee Democrats have shown that they will open a door in their blockade only when it becomes too embarrassing not to...
...Senators traditionally are granted a de facto veto over judicial nominees from their own state...
...But then on May 24, 2001, James Jeffords bolted the GOP shifting control of the Senate to the Democrats...
...But the Democrats' judicial blockade can be explained...
...And the Hearingless 8? All would have been confirmed, too...
...The circuit nominees are a different matter...
...And there is nothing else Bush can do if he's to stick to principle...
...Of those, 6 have been confirmed, and one (Charles Pickering for the 5th Circuit) was rejected in committee on a party-line vote, 10 to 9. Leahy has yet to schedule hearings for any of the remaining 4, though the paperwork for each was finished long ago...
...Interestingly, several candidates already are addressing it—John Cornyn in Texas, for example, and Lamar Alexander in Tennessee...
...Circuit on May 9, John Roberts actually had a hearing scheduled...
...Moreover, Leahy has failed on his own terms, since he said he would grant hearings for nominees within a year of their selection...
...But it appears that Michigan Democrat Carl Levin has been using this prerogative to block nominees not only from Michigan but also from other states in the 6th Circuit—an unprecedented move...
...By early August, Bush had designated 11 more circuit nominees...
...Bush has announced 7 nominees (2 of them last May 9), but none had been given a hearing—until the day after the Republicans sent Leahy their letter, when Julia Smith Gibbons of Tennessee was finally brought before the committee...
...Thirty-four Senate seats will be decided...
...Capturing the Senate will entail running the right kind of campaign in each state...
...He has recently promised hearings for 3 of the Hearingless 8— Miguel Estrada (D.C...
...By a pertinent historical measure, Leahy's committee has been slow: The three most recent presidents (Reagan, Bush, and Clinton) saw all of their first 11 nominees confirmed within their first year in office...
Vol. 7 • May 2002 • No. 34
