Holding the line on judicial nominees

By John Nowacki
web posted October 30, 2000

When the 106th Congress finally adjourns, the Senate will have confirmed 72 of President Clinton's judicial nominees, leaving him five short of Ronald Reagan's record 378 judicial appointments. That means that of all this country's active federal judges, over 46 percent are Clinton appointees. Clinton's confirmations-to-vacancy ratio for this year is at 54 percent, higher than the ratio in the presidential election year 1992 (51 percent), when the Democrats ran the Senate. In other words, Clinton has had a pretty good run at changing the face of the judiciary, thanks to the Republican-led Senate, which confirmed about two-thirds of his nominees.

But as the Senate leaves, 40 nominees will remain unconfirmed. Among the 40 not confirmed are a number of activist nominees, potential judges whose judicial philosophy would allow them to make law from the bench, and not merely interpret and apply the real laws passed by the Congress. And while Senate Democrats have pushed hard for some of these activists to be confirmed, Republicans have--finally--shown some gumption and said NO.

Oklahoma Senator James Inhofe

While a number of organizations--including members of the Coalition for Judicial Restraint--have been urging the Senate to halt confirmations, a great deal of credit goes to Oklahoma Senator James Inhofe, who has diligently opposed the confirmation of judicial activists. What is more, when Bill Clinton began abusing his recess appointment power, it was Senator Inhofe who led the effort to hold him accountable.

Last summer, after President Clinton recess appointed a nominee who was clearly controversial on the last day of a short recess, Senator Inhofe followed a precedent set by Democratic Senator Robert Byrd, who said he would hold up nominations unless then-President Reagan informed the Senate of contemplated recess appointments before the recess--out of respect for the Senate's advice and consent powers. Clinton, like Reagan, agreed. But he did it in writing.

When Clinton broke his pledge last November, Inhofe--with the support of nineteen other Senators--followed through on his promise and put holds on all judicial nominees. Unfortunately, while making sympathetic noises, Majority Leader Trent Lott overruled the holds and proceeded with more judicial confirmations.

But Clinton again broke his pledge in August, and finally even the Republican leadership had enough. Inhofe announced that he would once again hold all judicial nominations, and he again made the case that Clinton should be held accountable for breaking his pledge. And this time, he won.

Judiciary Committee Chairman Orrin Hatch, who had planned to hold another nominations hearing in September, didn't hold one after all. Activist nominee Bonnie Campbell, who was held up as a martyr by Barbara Boxer, Tom Harkin, and Patrick Leahy, never made it out of committee. Activist nominees James Wynn and Kent Markus weren't reported out of committee, either. And, aside from four non-controversial nominees sent to the full Senate before Clinton's August recess appointments, there have been no more confirmations.

Naturally, Democrats did a lot of complaining, but with their own record from 1992, they didn't have a leg to stand on.

Now, it's possible that without Inhofe's action, activists like Campbell, Wynn, or Markus might not have been confirmed. But I doubt it.

By breaking his written promise, Clinton handed the Republicans yet another reason to stop confirming his judicial nominees, and through his efforts, Inhofe made sure they realized it.

It's sometimes difficult to have respect for members of our national legislature; after all, even conservative leaders have broken promises or compromised where they never should have done so. But I count Senator Inhofe among those in the Congress most worthy of respect. In taking this stand over the past year, he has shown the kind of leadership and resolve that one always wants to see, but usually has so much trouble finding. And in this case, the results--the absence of several life-tenured activist judges--will be felt for years to come.

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

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