May 13, 2002, Vol. 7, No. 34 • By TERRY EASTLAND, FOR THE EDITORS
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 year later, 3 of them--including 2 Democrats named as a conciliatory gesture--have been confirmed by the Democratic Senate. Of the remaining 8, not one has been so much as scheduled for a hearing.
President Bush on Friday sounded the alarm about a "vacancy crisis" on the federal bench. 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. 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." Both sides brandish statistics to prove their case, but Republicans have the better argument, especially when it comes to those first 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. The Senate has confirmed 43 district judges and 9 circuit judges--a total of 52.
For the most part, the processing of district nominees has given the Republicans little cause for complaint. Most district nominees are being confirmed two to five months from the date of their nomination. Only one from last year hasn't been confirmed. That nominee, Paul Cassell, nominated for a seat in Utah, was finally voted out of committee last week, along with 5 more recent nominees. The remaining 20 nominees--all of them sent up since late January--are in various stages of the confirmation process. Eleven await review by the American Bar Association, which the committee requires before a hearing can be held.
The circuit nominees are a different matter. Hearings are past due not just for the 8 who have been patiently waiting a year. By early August, Bush had designated 11 more circuit nominees. 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. Last fall Bush announced 7 more circuit nominees. Just 2 have had hearings, and the other 5--their paperwork also complete--have yet to have hearings scheduled. Bush's 30th circuit nominee was announced last week.
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. Moreover, Leahy has failed on his own terms, since he said he would grant hearings for nominees within a year of their selection. He has recently promised hearings for 3 of the Hearingless 8--Miguel Estrada (D.C. 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." Maybe by then Leahy will have convened hearings for the bulk of Bush's circuit nominees.
But maybe not, which is why it is important to keep insisting that hearings for the circuit nominees be held now. 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. 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. 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. The failure to hold timely hearings is doing the bench no good.
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. But the Democrats' judicial blockade can be explained. Because very few cases now reach the Supreme Court, the 13 appeals courts effectively function as mini-Supreme Courts. Which is to say they are more important than ever before. 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. The 10 Democrats on the Judiciary Committee stand united against any such movement.