Senator Leahy does not meet his own standards

By John Nowacki
web posted December 10, 2001

In 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. (http:
//www.FreeCongress.org)

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