Cover Story

Attack and dissent

Senate Democrats threaten to shut down President Bush's judicial nominating machinery

Issue: "Attack and dissent," May 19, 2001

in Washington-On the same day as the CBS show Survivor whittled its cast down to one lone winner for the season finale, Democrats on the Senate Judiciary Committee were holding their own dressier rehearsal. As Chairman Orrin Hatch tried to assemble 10 votes to move the confirmations of top Justice Department officials, Democrats left the hearing room one by one. When only three Democrats and eight Republicans remained, Mr. Hatch told the committee's top Democrat, Patrick Leahy, "Unless you walk out on me, we're going to have the vote right now." Mr. Leahy and the other Democrats marched out. President Bush claims his team is "making progress" on bringing the parties together, but bipartisanship hit a brick wall in the Senate on May 3, one day after the White House sent its first 15 judicial nominations to Mr. Hatch and Mr. Leahy for review. The epicenter of this earthquake is the "blue slip," named for the sheet senators receive for comment on their home state's nominees for the federal bench. Democrats insisted that for Clinton nominees, Mr. Hatch let any blue slip objection kill a nomination. Mr. Hatch staunchly disagreed that he had created a system that gave each individual senator in effect a veto power. He angrily asked Democrats, "Do you want me to be your chairman or do you want me to be your puppet?" Aides to Sen. Hatch protested that his blue slip policy is the same as that of previous Democratic chairmen Ted Kennedy and Joseph Biden: Home-state objections carry weight, but nominations are stopped only when the White House doesn't consult home-state senators. Hatch press secretary Margarita Tapia said Republicans and Democrats alike complained of going unconsulted by the Clinton team. "There's been more consultation in these first 100-plus days than in eight years of the Clinton White House." By Mr. Hatch's count, the Senate confirmed 377 of Mr. Clinton's nominations to the federal bench, a very close second to the record 382 confirmed nominations of Ronald Reagan. "It would have been more except for Democrats putting holds on Democrat judges," Ms. Tapia said. But Senate Minority Leader Tom Daschle told reporters that Democrats will filibuster any judicial nomination that doesn't have blue slip approval. That threat caused the White House to delay nominating California's Christopher Cox and Carolyn Kuhl, as well as Maryland's Peter Keisler. Both states have two liberal Democratic senators who object to the Bush picks. Ideology is everything in this battle of wills. With Roe vs. Wade one vote away from repeal at 5 to 4, liberal interest groups are pushing a very hard line on Democratic politicians, starting with the district courts but focused most intently on any Supreme Court vacancy. Barry Lynn of Americans United for the Separation of Church and State has demanded that Democrats refuse any Bush nominee and go with a slogan taken from 1970s TV: Eight is enough. National Organization for Women leader Patricia Ireland has told supporters that rejecting just one Bush Supreme Court nominee can't be the limit. She cites Democratic opposition to Richard Nixon's nominees as a model: When Democrats rejected nominees Clement Haynesworth and Harrold Carswell amid accusations of poor intellects and poor civil-rights records, Nixon nominated Harry Blackmun, who wrote the Roe vs. Wade decision. Obstruction also paid off for liberals when Robert Bork was rejected in 1987 in favor of Anthony Kennedy, who's now one of the five justices upholding the abortion dictate. The fight over Mr. Bork's paper trail also added to the luster of trailless Bush appointee David Souter, now a reliable member of the high court's liberal bloc. On the right, Bush aides are holding meetings with conservative leaders to plot strategy on forthcoming judicial fights, but some conservative legal analysts aren't thrilled with the record of Republican resolve. Faced with the blue slip brouhaha, Tom Jipping of the Free Congress Foundation's Center for Law and Democracy told WORLD: "So much for six years of bending over backwards and paying obeisance to Democrats, thinking they would get courtesy in return ... what planet are they living on?" In a study of judicial nominations from 1991 to 1999, Mr. Jipping found that Democrats denied hearings to an average of 7.3 nominees per year, compared to 4.3 for Republicans. (Court vacancies averaged 116 when Democrats controlled the Senate, and 71 under the Republicans.) While Republican nominees were defeated within the Judiciary Committee under Democratic control, no Democratic nominees have been defeated in committee under the GOP. Democrats hold the modern record for confirming the most same-party nominees (101 in 1994), and the fewest opposition-party nominees (15 in 1989). Mr. Jipping found that record continues in comparing Judiciary Committee chairmen. In 1985, Mr. Biden threatened to hold up all judicial nominations until the GOP majority slowed down the confirmation process. Republicans have never used this tactic. Sen. Hatch didn't vote against a single Clinton judicial nominee from October 1994 to October 1999. That fighting liberal spirit is also obvious in the large number of Democratic "no" votes on Supreme Court nominees since 1986. Antonin Scalia and Anthony Kennedy drew unanimous support, but Chief Justice William Rehnquist drew 33 rejections. The next year, Robert Bork was bounced with 58 nays; Clarence Thomas squeaked through in 1991 with 48 disapprovals. By contrast, Clinton nominees Ruth Bader Ginsburg (3) and Stephen Breyer (6) sailed through. Likewise, the Senate unanimously confirmed Mr. Clinton's attorney general, Janet Reno, while 42 Democrats voted against current Attorney General John Ashcroft. Michael Horowitz of the Hudson Institute notes that Mr. Bush's nominees are "not more ideological than the Clinton nominees. What makes them so troublesome and dangerous to the left is their intellectual candlepower and leadership abilities. They have matured into really major figures, now and potentially in the future." The conservative talent pool has deepened in the three decades since Sen. Roman Hruska said of Nixon's Carswell nomination: "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?" Democrats nowadays are holding up nominees not over qualifications but over philosophy. Todd Zywicki, a law professor at George Mason University, explains that the difference in Democratic and Republican activism over judicial picks is a reflection of their general approach to the separation of powers: "Since the '60s, the left has been much more aggressive and interested about using the courts as an instrument for social change, much more aggressive in politicizing judicial nominees. Traditionally, Republicans have been more concerned about prerogatives of the executive, more deferential to executive authority than Democrats, more willing to make assessments on qualifications alone." The changing atmosphere around judicial nominations is just one reflection of why Washington seems so much more partisan than it was 30 or 40 years ago. In the 1960s and 1970s, conservatives were a fraction of the Republican Party, and Supreme Court nominations from William Brennan to Harry Blackmun to John Paul Stevens were more likely to be liberals than conservatives. The ideology of the senators is also growing more polarized. While the Judiciary Committee used to carry centrist Southern Democrats like Howell Heflin, current committee Democrats have an average American Conservative Union lifetime rating of 9, while the Republicans average an ACU rating of 90 (with the notable exception of the curve-ruining 41 of Sen. Arlen Specter). Over the next few months, President Bush may boast of bipartisan legislative success with his tax cut and his education plan, although the 50-50 Senate has watered down both. But the Democratic hard line on judicial nominations may be the greatest threat to his gridlock-busting persona and the fidelity of his conservative base.

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