The Magazine

Judges Delayed

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