The Magazine

Judges Delayed

May 13, 2002, Vol. 7, No. 34 • By TERRY EASTLAND, FOR THE EDITORS
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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.

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. 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. 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.

Committee Democrats have shown that they will open a door in their blockade only when it becomes too embarrassing not to. A case in point: Last week, all 49 Republican senators signed a letter to Leahy asking for an explanation of his "blue-slip" policy. Senators traditionally are granted a de facto veto over judicial nominees from their own state. To exercise it, they pass a negative "blue slip" to the chairman. 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. The 6th Circuit has 16 seats, half of them vacant. 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.

That it was Gibbons who got a hearing is instructive, since she is perceived as one of the more moderate circuit nominees. 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. Of course, if Bush were to compromise on philosophy and name candidates pleasing to the Democrats, he might see faster movement. Such compromise, however, would rightly be seen by the Republican base as betraying the president's campaign promises. And there is nothing else Bush can do if he's to stick to principle. The only way out for Bush is a Republican Senate.

The last election gave us one--by a single vote. But then on May 24, 2001, James Jeffords bolted the GOP, shifting control of the Senate to the Democrats. Everything else has followed. But for Jeffords's switch, the story on judges would be very different. Charles Pickering? Confirmed, with some Democratic support on the floor. And the Hearingless 8? All would have been confirmed, too. Indeed, you can precisely identify the Jeffords effect: Soon after his nomination to the D.C. Circuit on May 9, John Roberts actually had a hearing scheduled. But it was struck from the calendar once the Democrats took control.

November 5 is the date of the midterm elections. Thirty-four Senate seats will be decided. 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. They'll also have to hold Republican seats subject to potentially strong challenges--right now, those in New Hampshire, Arkansas, and Colorado. And they'll have to pick up at least one Democratic seat, with South Dakota, Missouri, Iowa, Georgia, and Minnesota offering the best chances.

Capturing the Senate will entail running the right kind of campaign in each state. And the right kind of campaign in some cases will entail making judges an issue. Interestingly, several candidates already are addressing it--John Cornyn in Texas, for example, and Lamar Alexander in Tennessee.

Make no mistake: The future of the appeals courts is riding on the midterm elections. And so, too, may be the future of the Supreme Court.

--Terry Eastland, for the Editors