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Senator Leahy does not meet his own standards

By John Nowacki
web posted December 10, 2001

Senate Judiciary Committee chairman Patrick LeahyIn recent letters to the Wall Street Journal and the Washington Times, Senate Judiciary Committee chairman Patrick Leahy continues to insist that with him at the helm, judicial nominations are being confirmed at fair pace and that the Democrats' record on judicial nominations does credit to the Senate. Unfortunately, neither claim is true.

Of President Bush's 64 judicial nominees, 21 have been confirmed - 33 per cent. In his first year, a Democrat Senate confirmed 27 of President Clinton's 47 nominees - 57 per cent. For former President Bush - again with a Democrat Senate - the total was 15 of 24 (62 per cent), and for President Reagan, it was 41 of 45 (91 per cent). Three of President Bush's nominees were confirmed the afternoon of December 6, meaning that the disparity was even greater when Mr. Leahy declared that he was keeping up the pace.

Obviously, comparing the number of confirmations without factoring in the number of nominees doesn't paint an accurate picture. Yet Mr. Leahy won't address the per centage of nominees he allows out of his committee - and it's not hard to see why.

When you factor in the date a President starts nominating judges, Senator Leahy's case looks even worse. President Bush sent down his first eleven nominations on May 9, and by the beginning of August, more than 40 nominees were before the Senate. President Clinton, in contrast, didn't make his first lower court nominations until August 6. Yet by December, 27 of his nominees were confirmed. With three more months in which to work, the Senate hasn't even confirmed that many of this President's nominees.

So much for keeping pace with other Presidents' first years. And when it comes to doing credit to the Senate, the Democrats' record isn't much better.

From the beginning of President Bush's administration, Democrats have made it clear that they would manufacture whatever obstacles they could to block this President's nominees. They held a retreat to discuss how to make a nominee's ideology the issue, regardless of his qualifications. They held hearings to justify ideological litmus tests. They held hearings to explain why a nominee must now bear the burden of proof, a complete reversal of past practice. They insisted that without the support of both of a state's Senators, a nomination is dead in the water. And so on. The search for qualified, fair judges who will follow the law has become a process of picking whose "acceptable" political beliefs will allow them into an institution where personal beliefs and politics are supposed to be set aside.

Last year, Mr. Bush said the Senate should act on a nomination within 60 days of its submission. On several occasions, Mr. Leahy stood on the Senate floor and very publicly agreed. This year, eight of the President's nominees have waited 212 days - and not for Senate action, but for a hearing. The other 43 nominees have waited less time, but for most, that 60 day marker has come and gone.

Now Senator Leahy ignores that and talks about a different deadline altogether. "President Bush's nominations confirmed since this summer have been acted upon within 60 days, on average, of receipt of an American Bar Association peer review," he wrote to the Washington Times. What about the 41 nominations made by August 1, before the summer ended? What about nominees whose ABA reviews came in months ago? Nominees like Miguel Estrada (unanimously well qualified, July 9), Jeffrey Sutton (qualified/well qualified, June 11), John Roberts (unanimously well qualified, June 20) or Deborah Cook (unanimously qualified, June 11)? Mr. Leahy doesn't say. And again, it's not hard to see why.

The number of judicial vacancies has always been important to Senator Leahy - or it was important until recently. He and others like Majority Leader Tom Daschle have spoken of a "vacancy crisis" or "judicial emergency" when the number of vacancies was actually much lower than it is today. Mr. Leahy has explained how empty judgeships delay justice, and as everyone knows, justice delayed is justice denied.

The number of empty judgeships has skyrocketed this year. A year ago, there were 67 judicial vacancies. By Inauguration Day, that figure was in the 80s. A few days before Mr. Bush's first nominations were made it hit 100. And it hasn't dropped below it since then.

Senator Leahy's Washington Times letter contains a truly obnoxious comment about empty judgeships. "At the time Republicans took charge of the Judiciary Committee in 1995, there were 65 judicial vacancies," he wrote. "When they turned over the gavel this summer, we inherited 103 vacancies, which rose to 111 by the time the committee was organized . . ."

Republicans took over with 65 vacancies, and when their session was all but over last December, there were only 67. In the midst of the Florida election debacle, who would have expected them to confirm any more of the outgoing President's judges? Considering that from 1991 to mid-1994, vacancies (under a Democrat Senate) were always over 100, that's not too bad.

Besides, vacancies are inevitable - judges with lifetime appointments will eventually retire or resign. What matters is how the Senate handles them when the nominees to fill them are there. That Mr. Leahy has not allowed that number to go down despite the number of nominees before him says volumes about how serious he is when it comes to easing the burden on undermanned courts and long-suffering litigants.

On June 16, 1997, Senator Leahy delivered a Senate floor speech that he would do well to remember. "A President should be given a great deal of latitude on who he nominates to the Federal court. If we disagree with a nomination, then we can vote against it," he said. "But, frankly, Mr. President, not only does it damage the integrity and the independence of the Federal judiciary by just holding judicial nominations hostage where nobody ever even votes on them, but I think it damages the integrity of the U.S. Senate."

In that speech, Mr. Leahy set a reasonable standard for what it takes to do credit to the Senate. Unfortunately, his actions don't measure up.

John Nowacki is the deputy director of the Center for Law and Democracy at the Free Congress Foundation.

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