Nominations for confirmations

By John Nowacki
web posted May 8, 2000

Word has it, they're at it again. The Republican leaders in the Senate, with their admirable track record of dealing with President Clinton's judicial nominations, may be preparing for another of their ingenious deals.

With the Democrats blocking Bradley Smith's nomination to the Federal Election Commission, several reports are suggesting that Senate Majority Leader Trent Lott is willing to swap the confirmation of at least six judicial nominees for "Democratic cooperation" on the Smith nomination.

Wonderful. Republicans have done such a brilliant job with these horse-trades in the past.

Take the case of Barbara Durham, who was once a nominee to the U.S. Court of Appeals for the Ninth Circuit. Senator Slade Gorton demanded her nomination in return for confirmation of judicial activist William Fletcher to that same court, as well as the confirmation of two other nominees. Clinton agreed to this nomination-for-a-confirmation deal, and Fletcher was quickly confirmed to a seat on the U.S. Court of Appeals. One of the other two nominees was confirmed, also. Durham, however, ran into opposition once she was nominated, and she withdrew her nomination for unrelated reasons.

True, an activist judge was placed on an activist court, but Durham was nominated. Republicans got what they bargained for.

Then there's the case of Ted Stewart. Senator Orrin Hatch wanted him nominated to the U.S. District Court for the District of Utah, and he even held up nominations in the Judiciary Committee for several months. When nominations started moving, word was that Hatch had reached a deal involving confirmation of some of Clinton's most controversial nominees.

At any rate, Hatch threw his support behind activist federal district judge Richard Paez and attorney Marsha Berzon, both nominated to the U.S. Court of Appeals for the Ninth Circuit. He moved their nominations through his committee. He spoke on their behalf. He cast the deciding vote that reported the nominations to the full Senate. And his friend was nominated.

Stewart then ran into the inevitable opposition in the full Senate. The Democrats kept blocking a Senate vote, going so far as to filibuster the nomination. It seems they wanted confirmation of three judges to the Ninth Circuit, Paez and Berzon among them. Hatch told reporters: "They may get one, maybe two of them-but all three seems difficult."

After two weeks, the Democrats "gave in." After all, Hatch had said he'd shut down nominations for the year. So they agreed to a vote on Stewart, in return for votes on six other judicial nominees. Stewart was confirmed.

Oddly, though, Clinton somehow neglected to sign Stewart's commission, preventing him from being sworn in. This oversight was miraculously corrected about a month later, after Senator Lott inserted a colloquy between himself and Minority Leader Tom Daschle into the Congressional Record. You had to look it up, but in it Lott agreed to bring Paez, Berzon, and every other judicial nominee on the Executive Calendar to a vote by March 15, 2000. Suddenly, Clinton signed the commission. Democrats dropped their opposition to Lott's choice for the Tennessee Valley Authority board.

The Senate approved more than eighty nominations by unanimous consent. And all was well.

Of course, the conservatives who had listened to Lott promise that he wouldn't bring Paez and Berzon to the floor unless the votes were there to defeat them were a bit surprised. But what did they know? This sort of deal-making is sophisticated stuff. Republicans had almost four months to come up with the votes to defeat these nominees-two of Clinton's most controversial. They'd muddle through, somehow.

Well, it's no surprise that Republicans couldn't even muster forty votes against Paez, whose description of his own judicial philosophy was clearly activist. But Republicans did get that gentleman on the board of the T.V.A.

And Stewart is now on the bench out in Utah. The G.O.P. got what it bargained for.

Now Senator Lott is ready to bargain with federal judgeships if it will get Bradley Smith confirmed to the F.E.C. He's reportedly offered confirmation of six judges (including Timothy Dyk, whose nomination is opposed by 188 grassroots organizations). Some newspaper reports say the Democrats are holding out for more, and it wouldn't be surprising to hear the offer go even higher.

I have no problem with Smith sitting on the Federal Election Commission. It would probably be a good thing to have him on board. But, no matter how good the cause, using federal judgeships as bargaining chips is the wrong thing to do.

These are lifetime appointments, and with today's distortion of the courts from Hamilton's "least dangerous branch" into an unelected legislature extraordinaire, judicial confirmations should be taken seriously.

I'm not talking about having more than one Senator present at nominations hearings. I'm not complaining about the general lack of meaningful questions regarding a nominee's judicial philosophy, either. It's simply that judicial confirmations are not meaningless abstractions to be bandied about.

Nor should they be looked upon as mere objects of political patronage, so that Senators are reluctant to oppose an activist nominee because it might interfere with confirmation of a nominee from their state.

President Clinton has had 341 judges confirmed by the Senate. Allowing for judges who were elevated and a few who have left the bench, that works out to 333 active judges, over 43 per cent of the active federal judiciary. Not all of those are activist judges. But many are, and most were confirmed by a Republican-controlled Senate that has only rejected one nominee on the Senate floor, and none in the Judiciary Committee.

In 1997, the Senate Republican Conference passed a resolution proclaiming that it opposes judicial activism, because it "threatens the basic democratic values on which our Constitution is founded." Fine words; words that mean nothing unless the Republicans actually act on them.

Republicans have shown that they have no qualms about confirming activist judges to cut a deal-Fletcher, Paez, and Berzon prove that.

When are they going to take this seriously?

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

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