Cover Story

Tyranny of the minority

Judicial crisis: More than two years into the Bush presidency, filibustering Democrats are engaged in an unprecedented effort to keep the full Senate from giving its advice and consent on judicial nominations. The result: Depleted federal appeals courts offer only piecemeal justice

Issue: "Tyranny of the minority," June 7, 2003

AFTER SEN. JOHN CORNYN (R-Texas) moved to Washington last December and unpacked his suitcases, he learned freshman lawmakers aren't the only ones carrying baggage. The Senate was changing hands, from Democratic to Republican control. And though Mr. Cornyn, a former Texas attorney general and Supreme Court justice, was no stranger to conflict, the entrenched bitterness that marked 18 months of Senate gridlock over President Bush's judicial nominations surprised even him.

"I had no illusions that the Senate was a bipartisan wonderland," Sen. Cornyn told WORLD, "but I was truly amazed at just how fractured the judicial confirmation process was."

That may be because this confirmation breakdown has disintegrated well beyond standard partisan payback. Yes, Democrats' consent to 124 of Mr. Bush's nominees has been excruciatingly slow; and yes, that may be retaliatory torpor for GOP foot-dragging on Clinton nominees.

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But now more than 750 days have passed for some of Mr. Bush's first "class" of 11 federal-court appointments. Compare that with the previous three presidents' first 11 appeals-court nominees, who were confirmed in an average of 81 days, with none taking more than 202 days, according to Concerned Women for America (CWA) legal analyst Tom Jipping. Further, the Senate has confirmed just 53 percent of appeals-court nominees during Mr. Bush's first two years in office, compared to over 90 percent during the same period for Presidents Clinton, Bush I, and Reagan. And in March, Democrats deployed a parliamentary weapon never before used by a partisan minority to kill a president's judicial appointments: They launched filibusters to block full-Senate votes on two Bush nominees.

Now it appears Democrats will try to make those filibusters permanent-and add two or three more. In the process, critics charge, they are subverting the Constitution, forcing piecemeal justice in understaffed courts, and exerting politically driven, minority control over the composition of the federal bench.

The Constitution gives the Senate "advise and consent" power over presidential appointments to federal judgeships: A simple majority of senators must "consent" to-or vote to confirm-a nominee in order for that judge to take office. But since March, Senate Democrats have voted eight times to block the full Senate from voting on appeals-court nominees Priscilla Owen, a Texas Supreme Court justice, and Miguel Estrada, a Washington, D.C., attorney in private practice. This, though a majority of the full Senate has indicated that it would vote to confirm both nominees.

"For the first time in American history, a minority of Senators is using the filibuster ... to replace majority rule with minority rule," Mr. Jipping explained in a report last month: "That is, a minority seeks to defeat judicial nominations the majority would otherwise approve."

In a Rose Garden speech on May 9, 2003, the two-year anniversary of the Owen/Estrada nominations, Mr. Bush called the Senate delays "a disgrace."

"Highly qualified judicial nominees are waiting years to get an up-or-down vote from the United States Senate... while partisans search in vain for reasons to reject them," Mr. Bush said. "The obstructionist tactics of a small group of senators are setting a pattern that threatens judicial independence."

Heritage Foundation senior legal fellow Todd F. Gaziano believes the issue boils down to a fundamental clash of judicial philosophies: While most conservatives believe the law should operate independently of politics, many liberals believe that law is simply politics by other means. "Liberal activists believe the courts should engage in legislation from the bench," Mr. Gaziano said. "Some even say that's all judges really can do, and that anyone who says the Founding Fathers believed otherwise is either naïve or stupid."

For legislators who believe in judicial activism, a sympathetic federal appeals-court judge is a special prize, since they often get the last word on laws affecting such cultural hot-buttons as abortion, affirmative action, and free speech. Justice Owen and Mr. Estrada both are pro-life conservatives. Liberal Democrats may see case law like Roe vs. Wade hanging in the balance, and would rather keep appeals-court judgeships empty than fill them with jurists whose cultural and political views don't match their own.

It isn't that Senate Democrats have only just concluded this. Liberals like Charles Schumer (D-N.Y.) have long supported the idea that ideology should influence, even drive, judicial confirmations. They just didn't say it out loud. But with all three branches of government under GOP control, and a Bush 2004 reelection victory seeming to be on the horizon, "activist Democrats are apoplectic," Mr. Gaziano said. "Their world is crumbling." No better time to be brazen than now.

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