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Now President Bush's judicial nominees will get a hearing and a vote

By John Nowacki
web posted November 11, 2002

Although it will by no means be smooth sailing, President Bush's judicial nominees will have a much easier time now that Republicans have regained control of the Senate.

After Democrats became the de facto majority in June 2001, many of Bush's nominees were unable to get a Senate vote, a committee vote, or even a hearing. Eight of his first 11 nominees -- sent up in May of last year -- were not brought to the Senate floor. Only 44 percent of his circuit court nominees were confirmed in his first two years (in contrast with much higher numbers for the last three Presidents), and two nominees were voted down in committee merely because they had enough bipartisan support in the full Senate for confirmation.

Even more than their overall belligerence, Democrats' treatment of those two nominees -- Charles Pickering and Priscilla Owen -- outraged conservatives and made judicial nominations a much more important issue on Tuesday than one would normally expect. President Bush was well aware of this, mentioning judicial nominations near the beginning of nearly every Senate campaign speech in the days before the election.

While the mix of issues influencing conservative voter turnout is always complex, it is significant that lower court nominations mattered at all. Rank and file liberals are usually much more energized about the judiciary, for obvious reasons, but it takes a great deal for conservatives to get really worked up about the issue. That it happened at all is no doubt a great surprise to Judiciary Committee Democrats, who believed that there would be no real repercussions from their smear campaigns against so many nominees.

With the Senate in Republican control, expect the long-suffering nominees who have waited 18 months for an up-or-down vote to finally get one. The unconfirmed nominees from this Congress will be re-nominated for the next, Owen and possibly Pickering among them.

Judiciary Committee Democrats and the groups who guide them will have to choose their battles more carefully, and they will need something more substantive than the results of an ideological litmus test to make a case against a nominee. When pressed for something substantive throughout this Congress, they either complained about not having enough to use against the nominee (as they did with Miguel Estrada) or resorted to lies and distortions (as they did with Pickering, Owen, Brooks Smith, and others).

The Estrada approach is so absurd that even The Washington Post took them to task for it, and it certainly will not have much effect today. Which leaves the path of lies and distortions -- and judging by the quality of the nominees sent up so far, this avenue is all that liberal Democrats and the left-wing groups will have left.

Democrats can always resort to procedural maneuvers to oppose present or future nominees, though Republicans should be quick to remind them of their own calls for up-or-down votes on every judicial nominee. But since most if not all of the present nominees would have been confirmed under the Democrat-controlled Senate had they received a floor vote, procedural stalling runs the risk of making those doing it look ridiculous.

Regardless of whether the Senate was under Republican or Democrat control, President Bush consistently nominated men and women who are fair, qualified, and committed to following the law. Many of them must be breathing a sigh of relief this week. They may not be confirmed, but at least they know now they'll get a hearing and a vote.

John Nowacki is Director of Legal Policy at the Free Congress Foundation.

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