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Pat Leahy's passive aggressive game

By John Nowacki
web posted October 29, 2001

Senator Patrick Leahy

Although you'd never know it if you only listen to Senator Patrick Leahy, judicial nominations have been moving through the Senate at a crawl this year. Senate Republicans have had all summer to observe the Vermont Democrat's unorthodox way of dealing with the "judicial vacancy crisis," and two weeks ago they tried to force the Democrats to lift their blockade on President Bush's nominees. In a remarkable show of unity, Republicans actually sought to delay consideration of an appropriations bill to call attention to the problem -- unfortunately, with Democrats refusing to budge, the GOP threw in the towel last week.

One hundred and six federal judgeships are currently vacant, 40 of those vacancies have been declared "judicial emergencies," and on one appeals court -- the Sixth Circuit -- 7 of 16 seats are empty. Although this dwarfs the 70 vacancies that Judiciary Committee Chairman Leahy has referred to as a "vacancy crisis," the Senate has only confirmed 12 of the 60 men and women nominated to the federal bench this year.

A comparison of the number of district court and court of appeals nominees confirmed during the first years of the last several Presidents illustrates the degree to which Democrats have slowed down confirmations. In 1981, President Ronald Reagan nominated 45 and the Senate confirmed 41. In 1989, President George H.W. Bush nominated 24 and the Senate confirmed 15. In 1993, President Bill Clinton nominated 47 and the Democrat-controlled Senate confirmed 27 (this does not include the Ginsburg Supreme Court nomination). Ninety-one percent of Reagan's first year nominees were confirmed, 62 percent of the first President Bush's were confirmed, and 57 percent of Clinton's were confirmed. This year, with the adjournment of the Senate looming ahead, only 20 percent of George W. Bush's nominees have been confirmed.

While Senate Democrats have congratulated themselves for "keeping pace" with previous years and holding hearings (without acknowledging that some hearings featured only one nominee), they have put forward a number of excuses for not confirming more. Senator Leahy continually trumpets the fact that the late Republican majority did not hold hearings during the months before July that it controlled the Senate. However, the President did not submit any nominations until May 9 -- very early for a first year -- and Democrats objected to the hearing Republicans scheduled in late June (before Senator Jeffords turned his coat). Incidentally, President Clinton did not submit his first nominations until August.

Senator Leahy also complains about the time it took to reorganize the Senate following Jeffords' attack of conscience, insisting that he could not hold hearings during that time. However, as Senator Orrin Hatch recently pointed out: "The lack of an organizational resolution did not stop other Senate committees from holding confirmation hearings. In fact, by my count, after the change in Senate control, 9 different Senate Committee Chairmen held 16 different nomination hearings for 44 different nominees before reorganization. . . . But in the same period of time, the Judiciary Committee did not hold a single confirmation hearing for any of the then 39 judicial and executive branch nominees pending before us -- despite the fact that some of those nominees had been waiting nearly two months."

While discussing the delay of the appropriations bill, Judiciary Committee Republican Jon Kyl noted the Democrats' complaints about doing two things at once and said: "That is why I have decided that if, in fact, it is the case that we cannot do more than one thing at a time, then we will simply call a timeout on the appropriations process, go to these nominations, see how many of them we can get done as appropriate, and then return to the appropriations process."

Democrats filed for cloture -- an end to debate -- on the appropriations bill, and a vote was held October 15. Sixty votes for cloture were required, and the motion was defeated in a 50-46 party-line vote. Another vote was held October 23, and again the motion was defeated, 50-47. Nevertheless, Senate Majority Leader Tom Daschle insisted that there was nothing to negotiate about.

In fact, that's just what he told the President in a meeting on October 23. According to the Washington Times, he informed Mr. Bush that "there isn't leverage on appropriations bills." Minority Leader Trent Lott elaborated a little further, saying that Daschle said: "You want the appropriations bills, so good luck."

Senate Republicans then agreed to drop their opposition to the foreign operations appropriations bill. "We're going to act in good faith," explained Senator Lott. "We're going to do what these times call for. We hope they will do the same when it comes to confirming federal judges."

Not surprisingly, Mr. Daschle called that "a positive sign."

To be perfectly fair, Senator Leahy has indicated that there is a way that might get a nomination moving, barring any opposition from any Democrat -- go to him and ask for action on that specific nominee. In recent hearings, Mr. Leahy has announced that certain nominees are moving because their home-state Senators have done just that. It doesn't always work, though.

A recent report in the Capitol Hill newspaper Roll Call indicated that Colorado Senators Wayne Allard and Ben Nighthorse Campbell approached Mr. Leahy with a request for action on 3 Colorado nominees two weeks ago.

"Well, he asked, ‘How did you vote [on the cloture motion],'" Allard told the newspaper. "If I go ahead and vote for cloture, you'd move my judges to the top?" the Senator said he asked. "He said, ‘Yep.'"

Mr. Leahy's spokesman did not deny the remarks while suggesting that the response may have been an attempt at "irony."

Last year, Senator Leahy publicly agreed with then-Governor Bush's statement that the Senate ought to act on judicial nominees within 60 days. With some nominees having waited over 160 days, no real excuses for delay, and 106 judgeships standing vacant, it's long past time that he took serious action. But unless Republicans can come up with an incentive for him to do that -- don't count on it -- we can look for more of the same obstruction and delay for a long time to come.

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

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