The New Republic

In the hierarchy of famous dates, May 9 rates pretty low--its

biggest claim to fame came in 1960, when the Food and Drug

Administration approved the world's first commercially produced

birth-control pill. But among Republicans, May 9 has become very

significant. The reason? On May 9, 2001, President George W. Bushnominated his first eleven candidates for the U.S. Circuit Court of

Appeals. Now Republicans are threatening to bring the Senate to a

standstill--this May 9--to protest the fact that the Democratic

Senate has confirmed only three of those eleven; the remaining eight

have not even been scheduled for hearings.

Republicans argue that the "Hearingless 8" (as The Weekly Standard

has dubbed them) represent only a few of the victims of the Senate

Democrats' "obstructionism." Of Bush's 100 judicial nominees, only
52

have been confirmed; and of the 48 not confirmed, only nine have
been

granted hearings--at a time when there are 89 vacancies on the

federal bench. "The Senate can do much more and must do much more to

address the current vacancy crisis," Bush declared last week. "By
its

inaction, the Senate is endangering the administration of justice."

For their part, Democrats respond that if there is a vacancy crisis,

it is the GOP's fault. From 1995 through 2000, when Bill Clinton was

in the White House and Republicans controlled the Senate, the Senate

confirmed only 35 percent of Clinton's appellate court nominees; by

the time Clinton left office the number of appellate court vacancies

had more than doubled. Indeed, in confirming 52 of Bush's nominees
in

one year, the Democratic Senate has already surpassed the number of

judicial nominees the Republican Senate confirmed in the last four

years of the Clinton administration. "President Bush needs to get
the

facts straight," Senate Majority Leader Tom Daschle said in response

to Bush's broadside. "The fact is, judicial vacancies dramatically

increased under Republican control of the Senate. In less than a

year, Democrats have significantly reduced those vacancies."

According to Roll Call, Democrats, trying to make May 9 their own

special day, have scheduled hearings for that morning on the

"egregious treatment of Clinton nominees."

The fight over judicial nominees is one of those nasty spats that
beg

for a high-minded solution. As The Washington Post's Ceci Connolly

recently lamented on FOX NEWS, "The problem is, OK, after we agree a

pox on both households, how do you break ... this stalemate?" One

answer that has grown increasingly popular among the commentariat is

forDemocrats to at least grant hearings to Bush's nominees--even if

they eventually vote against them. While empathizing with Democratic

objections to some of Bush's more ideologically extreme nominees, a

March editorial in The New York Times called on Senate Democrats to

stop dragging their feet and to arrange "for an up-or-down vote in

the Judiciary Committee." As the Los Angeles Times' Ronald
Brownstein

recently argued, senators should be "require[d] ... to cast a

recorded vote to block a president's selection. ... Even judges

should be guaranteed their day in court."

Which sounds fair enough. After all, it hardly seems right for

Democrats to thwart Bush's judicial nominees simply by stalling.
But,

in fact, the up-or-down vote solution is no solution at all--unless

you're resigned to letting a president, elected with a minority of

the popular vote, shift the judiciary substantially to the right.

Politically, once you grant hearings, you have to vote yes the vast

majority of the time. The ugly truth is that the only practical way

to stop Bush from stocking the courts with his ideological kin is to

stall. Procedurally, that's nothing to be proud of. But it worked
for

the Republicans in the 1990s. And today it's the only viable
strategy

Democrats have.

The fundamental flaw in the up-or-down vote solution is its

assumption that voting down judicial nominees is easy. In fact, it's

hard to do even once and impossible to do as a matter of course.
Just

consider the recent case of Charles Pickering, the Mississippi

federal district court judge Bush wanted to bump up to the Fifth

Circuit Court of Appeals. Pickering was an understandable target for

Democrats: an arch-conservative with a not-too-distinguished track

record and a good friend of Mississippi Senator Trent Lott--the man

who personally blocked three of Clinton's nominees to the same
court.

What's more, Pickering was a right-wing Southerner with an ambiguous

personal history on race. It didn't take much for Democrats and
their

liberal interest-group allies to paint him as a racist--which, in

crude (and shameful) fashion, they did. In the end, Pickering was

defeated on a straight party-line vote of ten to nine.

But defeating Pickering came with a price. First, the Pickering

hearings created a poisonous atmosphere on the Hill. The cordial

relations between Daschle and Lott, which the two had enjoyed ever

since 9/11, became almost instantly bitter as Lott sought revenge by

blocking the appointment of a top Daschle aide to a seat on the

Federal Communications Commission. Lott also used Senate rules to

shut down meetings of three Senate committees, and he tried to block

money appropriated to the Judiciary Committee for anti-terrorism

oversight.

Even worse for Democrats--particularly those running for reelection

this November--was the political fallout. As Georgia Democratic

Senator Zell Miller, who supported Pickering, said, his defeat will

"make it even more difficult for Democratic candidates to be

successful in the South." And sure enough, Republican Senate

candidates like John Cornyn in Texas and Lamar Alexander in
Tennessee

are making judges an issue. ("President Bush was right about Judge

Pickering," Alexander declared in one of his campaign's first radio

ads.) What's more, Republicans are already threatening that if John

Edwards runs for president, they'll use the North Carolina senator's

anti-Pickering vote--and his relentless questioning of Pickering

during his hearing--to portray him as a liberal tool of left-wing

interest groups.

All of which makes it unlikely Senate Democrats will be willing to

endure many more Pickeringesque fights in the future (except, of

course, when it comes to the Supreme Court). Indeed, were Democrats

to grant every Bush nominee a hearing and an up-or-down vote, it

seems likely most of the votes would be up: While Democrats have

given the green light to 52 of Bush's judicial nominees, Pickering
is

the only one they have actually voted down.

On the other hand, the political consequences of stalling seem

relatively minor. Just consider how brilliantly the strategy worked

for the Republicans during the Clinton administration: Of the 24

Clinton appellate court nominees the GOP defeated, not one was ever

allowed a public vote. Much as Republicans are doing today,
Democrats

back then tried to make an issue out of the delays and the vacancy

crisis they were causing. "The Republicans are holding up

judgeships--causing extraordinary delay of justice in many parts of

our country because we don't have judges," Daschle complained in

1997. But when voters went to the polls, they didn't seem to

care--returning Republican majorities to the Senate. Indeed, the
only

Republican senator who seemed to suffer at the polls because of his

opposition to a judicial nominee was Missouri Senator John Ashcroft.

That's because Ashcroft had the bad sense to torpedo the nomination

of a black judge named Ronnie White after White had his hearing and

was up for a vote. Black turnout in Missouri more than doubled in

November 2000--a major reason Ashcroft lost. The lesson, ironically,

is that senators take more heat for obstructionism when they give

nominees a hearing and then oppose them than when they are truly

obstructionist and hold no hearings at all.

So is there a solution to the judicial nominee impasse? Yes, and
it's

called a compromise. As some Democrats on the Hill are suggesting

(and as the Los Angeles Times' Brownstein proposed, in addition to

the up-or-down vote solution), Democrats should offer hearings (and

yes votes) to the Bush nominees they deem acceptably moderate. In

exchange, Bush should scrap his most conservative nominees and

replace them with candidates more to the Democrats' liking,
including

some of the judicial moderates Clinton put forward who never
received

votes or hearings. This would prevent Republicans from unfairly

benefiting from their intransigence during the Clinton years, and it

would go a long way toward solving the judicial-vacancy crisis. And

it could, in the end, get May 9 off the calendar once and for all.

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