The Magazine

Here Come Da Judges

Get ready for a whole new confirmation game.

Nov 18, 2002, Vol. 8, No. 10 • By TERRY EASTLAND
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ON JUDGES, things will be different. The wars over judges of the past two years were made possible by the simple fact that the Democrats controlled the Senate. They used their power to block an unprecedented number of President Bush's appeals court nominees. Now that the Democrats constitute the minority, the outlook for Bush's nominees--including any he might make to the Supreme Court--is considerably brighter.

The first thing that will change is the Judiciary Committee. It will have a new chairman--Orrin Hatch, replacing Patrick Leahy--some new members, and perhaps fewer members in total.

In June 2001, after James Jeffords left the GOP and became an independent allied with Democrats for purposes of Senate organization, the committee, evenly split at 9 to 9, added a tenth Democrat. If Republicans decide to maintain a 19-member committee, one Democrat must leave, the obvious candidate being the most junior Democrat, John Edwards. Republicans are considering shrinking the committee to 17 members, in which case a second Democrat would have to depart, probably the next most junior, Maria Cantwell.

One Republican--Strom Thurmond, who is retiring--will leave the committee. So the membership will include one new Republican even if the total drops to 17, two if it remains at 19. Candidates include Thurmond's successor, Lindsay Graham, and John Cornyn, the former Texas Supreme Court justice and attorney general who will take Phil Gramm's seat. Aides to Republican senators say that if Democrat Mary Landrieu loses the December 7 runoff in Louisiana and Republicans thus increase their majority to 52, they may seek a two-seat edge on the committee.

Whatever its size and membership, the committee will operate in ways congenial to Bush. The president's complaint with the committee under Leahy has concerned mainly its handling of appeals court nominees: It has failed to schedule hearings for some nominees and timely hearings for others, to vote on some nominees who did get hearings, and to allow the full Senate to vote on two nominees it rejected on 10-to-9 party line votes. Had the committee reported those nominations--of Charles Pickering and Priscilla Owen, both designated for the Fifth Circuit--to the floor even with negative recommendations, majorities including some Democrats would have voted to confirm.

Bush also has complained about the committee's "mistreatment" of some nominees, Owen in particular. In Dallas on November 4 campaigning for Cornyn, Bush asked his audience to consider "what happened to one of our finest Texans." He pointed to her stellar record as a private lawyer and a Texas Supreme Court justice, and the high regard in which she is held by the Texas bar and the American Bar Association. But "because these people"--meaning committee Democrats--were "playing politics, petty politics, . . . her record was distorted and she was denied a seat. She was grossly treated."

Some numbers help tell the story of Democratic obstructionism (or success, from their point of view): Of Bush's 32 nominees to the appeals court, the Senate confirmed only 14, or 44 percent. During comparable periods--the first two years of a presidency--the Senate typically has confirmed a much higher percentage of appeals court nominees. (For Ronald Reagan, it was 95 percent; George H.W. Bush, 96 percent; and Bill Clinton, 85 percent.) What especially irritates Bush is the lack of hearings: On November 15, no fewer than 15 of his appeals court nominees will have waited in vain for more than a year to have hearings scheduled.

At the White House six days before the elections, Bush announced a plan "to ensure timely consideration of judicial nominees." The plan proposes that the Senate Judiciary Committee hold a hearing within 90 days of receiving a nomination, and that the full Senate hold an up-or-down floor vote within 180 days. The plan drew little press notice, and committee Democrats summarily rejected it. Two days after the election, Bush made another pitch for it.

Were the Senate to adopt Bush's recommendations, it would do so in new rules--which Hatch favors. But it seems doubtful that the Senate would actually vote to constrain its own power. In any case, Bush is likely to get what he wants simply because he now has a Senate of the same party: hearings within 90 days and floor votes within 180. What this means is that even in the unlikely event a nominee is defeated in committee, the full Senate will be given the opportunity to vote. A committee will no longer act for the entire Senate.