Let the nominations begin

By John Nowacki
web posted February 19, 2001

He may have been in office for just under a month, but it's time for President Bush to start nominating judges.

During the campaign, Bush vowed to appoint strict constructionists to the federal bench. After eight years of Clinton appointees--who now make up over 47 percent of the active federal judiciary--the need for judges who will follow the law as written has never been greater.

The conventional wisdom is that Bush will have a difficult time getting judges confirmed, especially after the Ashcroft nomination--Senator Schumer's much-ballyhooed "shot across the bow." And then there's the possibility of confirmation delays motivated by revenge. Last May, Senator Joseph Biden openly stated that should George W. Bush be elected, "most judges will be stopped" in retaliation for the Republican record on Clinton nominations (he claimed that he would not be party to that).

Of course, the awful record he was referring to involved confirming nearly two-thirds of Clinton's judges and putting him just short of Ronald Reagan's two-term record for the number of judges appointed. That's not to mention keeping the number of vacancies far lower than the Democrats did when they ran the Senate. Democrats should be thanking Republicans for that record and reciprocating, instead of worrying about retaliation.

But there are a few points on the President's side. First, not every nomination is to the Supreme Court. The left-wing groups will never be happy with a judge who values the process of following the law more than the notion of bending the law to achieve a desired result. But since their only ground for opposing a nominee that he simply disagrees (or might disagree) with their political agenda, they know they are on flimsy ground. To keep that shallow rationale below the radar, they will have to be selective in their opposition.

Second, there are currently 91 vacancies on the federal courts. Democrats were extremely vocal about a "vacancy crisis" during the Clinton years, when fewer than 60 vacancies were cause for concern, and their words could come back to haunt them.

With his endless complaints about the effects of vacancies on the administration of justice, Senator Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, ought to be enthusiastic about getting the confirmations going. Ted Kennedy, another Senator on the Committee, has chimed in, comparing the judiciary with more than 90 vacancies to a business in bankruptcy.

Two other Judiciary Committee Democrats, Biden and Richard Durbin, have also urged their colleagues to keep vacancies low. In fact, Durbin told his fellow Senators a few years ago, "I must confess that I would rather err on the side of [having] too many judges than too few."

Now, no one really believes all of these Senators meant these words to include the confirmation of Republican appointees. Several of them were dedicated to blocking or slowing down Republican appointments when they were in the majority. But, nevertheless, they and other Senators have gone on and on about the need to eliminate vacancies on the courts. They should at least be presented with the choice of acting like they were sincere or being exposed as hypocrites.

A third point relates to the delay of nominations. Before the election, then-Governor Bush said that the Senate should vote on judicial nominees within 60 days of its receipt of the nomination. Leahy and others gleefully jumped on this declaration, and several went so far as to agree with it. Again, they should have the opportunity to demonstrate their sincerity.

First and foremost, though, President Bush should withdraw the 9 nominations Bill Clinton made two weeks before he left office. Like so many of the things Clinton did in his last days in the White House--including the recess appointment of one nominee--these nominations were simply obnoxious. None had a chance of being confirmed when Clinton wasn't a lame-duck, and since they clearly share Clinton's idea of what a judge should be, they shouldn't be confirmed now. Bush is a supporter of judicial restraint, and he should replace them with nominees who share his judicial philosophy.

While it hasn't been all that long since President Bush took the oath of office, it is time for the process of filling these judicial vacancies to begin. As Senator Barbara Boxer so eloquently put it, "Justice needs to be done, and it is hard to serve it when you don't have the judgeships filled."

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

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