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President Bush: Will his plan end Leahy's "gotcha" politics over court nominations?

By John Nowacki
web posted November 4, 2002

Fed up with the Senate's unfair treatment of his judicial nominees, President Bush on October 30 proposed what he called "a clean start for the process of nominating and confirming federal judges." While standing in the East Room, where he presented his first 11 nominees almost a year and a half ago, Bush said the existing process is so poisoned and polarized that nominees clearly are not being treated fairly.

Judicial appointments is an important issue, and at nearly every campaign stop for a Republican Senate candidate, Bush reminds voters of the need for Senators who will allow his nominees to get hearings and a vote on the Senate floor. Bush's proposals were simple and straightforward. He asked judges who expect to retire or take senior status to notify the President a year in advance, if possible. As he explained, the goal should be to have an appointee in place when the seat becomes vacant.

To further that goal, he proposed that Presidents submit a nomination within 180 days of receiving notice from the judge, that the Judiciary Committee hold a hearing within 90 days of the nomination, and that the Senate bring the nomination to a vote another 90 days later.

"The plan would be fair and would apply to -- regardless of who the President is," he said. "It doesn't matter who the President is. What matters is a system which works."

Right now, that system does not work. Bush has had to deal with a confirmation process run by Senators Patrick Leahy and Tom Daschle, who have made every effort to stall as many nominations as they can. And even though they have both spoken in the past of a need to resolve the vacancy crisis in the judiciary, they are now doing all they can to perpetuate it.

Their treatment of Bush's court of appeals nominees has been deplorable.Former President Reagan saw 95 per cent of his court of appeals nominees confirmed during the first two years of his presidency. George H.W. Bush had 96 per cent confirmed during the same period. Bill Clinton's figure was 85 per cent. They have refused to show George W. Bush the same courtesy, only allowing 44 per cent of his court of appeals nominees to be confirmed.

Some, like Priscilla Owen and Charles Pickering, had the votes in the Senate but were denied the chance for a vote. Others, like Dennis Shedd, have the votes in the Judiciary Committee and the Senate, but have been denied a chance for a vote in either body. As Bush said, it is a lousy record.

The vacancy crisis and confirmation slowdown have very real effects, not just on the nominees and the judicial system, but also on ordinary people who look to the courts for justice. But when certain Senators decide that it is fine for the Sixth Circuit to operate with 7 of its 16 seats vacant for nearly a year, or for the D.C. Circuit to operate with 4 of its 12 seats vacant for months on end -- despite the availability of highly qualified nominees whose names are before them -- those Senators have signaled that they simply do not care.

Bush's proposal is a common sense resolution to a lot of the difficulties plaguing the confirmation process. Unfortunately, Senate Democrats are unlikely to embrace it. After all, Senator Leahy has already publicly agreed with Bush's call two years ago for floor votes on nominees within 60 days -- but he has left a group of nominees waiting 540 days and counting.

He has also said it is irresponsible for one Senator to decide for all the others whether someone will be confirmed or not, and has proposed legislation that would require votes on nominees pending more than 60 days if the Senate is going out for an extended recess. Now, though, he pretends he never advocated any of these things.

As long as Leahy runs the Judiciary Committee and Daschle wields control over the Senate floor, the unfair treatment of Bush's nominees will continue. They expect that their embrace of a political litmus test for nominees will not have an impact at the polls in this election, and they know that it will be another two years before a Democrat Senator has to face the voters. Even more significantly for them, they know that Bush himself will be up for re-election then as well. If Democrats still control the Senate during the next Congress, we can expect a presidential election year slowdown to go on for the next two years.

President Bush has put forward a proposal that would bring a real measure of fairness back to the increasingly bitter confirmation process. If Senate Democrats were really serious about ending gotcha politics, they would look to this as a good start. But as the defeats of Pickering and Owen clearly show, gotcha politics is just what they live for.

John Nowacki is Director of Legal Policy at the Free Congress Foundation.

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