Judge Not

by Jason Zengerle | May 20, 2002

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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