A Reality Check On GOP Whining About Judicial Nominations

From:  David Carle, spokesman for Sen. Patrick Leahy (D-Vt.),               
           ranking Democratic member, Senate Judiciary Committee

RE:      Republican Whining

Under the Democratic-led Senate of the 107^th Congress and continuing this year in the Republican-led 108^th Congress, the judicial confirmation process is working far faster than it did when Republicans routinely blocked nearly 60 of President Clinton’s nominees with anonymous holds, filibusters and other roadblocks.  The Senate now has confirmed 123 Bush judicial nominees, with an additional confirmation expected tonight (Roberts, Thursday night).  We now also are at the lowest vacancy rate in 13 years, since 1990.  One hundred of those Bush judicial nominees were confirmed by the previous Democratic-led Senate.  Only two of President Bush’s nominees have faced cloture votes -- and these cloture votes are open roll calls, not the secret holds that Republicans used anonymously to block scores of President Clinton’s nominees.

The judicial vacancy rate in percentage terms – 5.45 percent – is even smaller than the nation’s overall jobless rate, which reached 6 percent last Friday. 

NUMBERS.  With the confirmation Monday night of Deborah Cook, judicial vacancies are down to 47, according to the Judiciary Committee website – the lowest in 13 years.  The Democratic-led Senate of 2001 and 2002 confirmed 100 Bush judicial nominees, and this year’s Republican-led Senate has confirmed 23, for a total so far of 123 (these numbers will change with the likely confirmation of John Roberts Thursday night).  

At the time Democrats took over leadership of the Judiciary Committee in the summer of 2001, Democrats inherited 110 vacancies, and 40 additional vacancies occurred while Democrats were in charge.  The Democratic Senate confirmed 100 Bush judicial nominees – 17 circuit and 83 district – in only 17 months.  Presumably, nearly all 100 confirmed by the Democratic-led Senate were pro-life, conservative Republican nominees.  The Democratic pace was faster and fairer than Republicans’ pace since their slowdown began in 1996.  Last year (2002) was the best single year (in terms of numbers of judicial nominees confirmed) since 1994. 

THE SITUATION NOW.  The judicial confirmation process is going far more smoothly today than Republicans allowed under President Clinton.  Nearly 60 Clinton nominees were not given hearings and/or votes, and others were filibustered or waited years to get their hearings.  President Bush acknowledges choosing nominees based on their ideology.  President Clinton, as CQ and others concluded, was known instead for choosing mainstream candidates.   

The many good-faith steps by Democrats in the 107^th Congress to repair some of the damage of the previous six years of the Republican obstruction of President Clinton’s nominations have not been reciprocated by the White House.  In fact they are not even acknowledged.  For most of this year, Chief Justice Rehnquist has been the only Republican gracious enough to even mention that Democrats had confirmed 100 Bush nominees.  Democrats ended the era of anonymous and secret holds, made blue slips public for the first time, expedited the pace, made the process fairer, and even acted on vacancies in circuits where Republicans had purposefully blocked President Clinton’s appointments.  Unlike Republicans, Democrats held hearings and votes even on highly controversial nominees (the Pickering, Owen, Shedd and Estrada nominations are examples).  This year, to make matters worse, Republicans have systematically changed, bent and even broken the committee’s rules and practices now that there is a Republican in the White House (compared with their handling of Clinton nominees).

The process starts with the President, and any further meaningful improvements have to come from the White House.  The President began his term by ending the pre-nomination peer review vetting by ABA, then also ended the normal practice of consultation with the opposition party and with home state senators that earlier presidents have followed (President Clinton even let Chairman Hatch pick a Utah judge, a Republican).  More than any recent president including Reagan, President Bush is picking nominees based on their ideology – and brags that he is doing that.  Yet he objects when the Senate examines the rigidity of their ideology. 

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Contact: David Carle, 202-224-3693