Judges Delayed is Justice Denied

In a surprising sign of political life, Senate Republicans are demanding hearings for two of the many appeals court nominees caught in the Democrats' obstruction machine.

Four of the 12 full-time positions on the U.S. Court of Appeals for the D.C. Circuit are currently empty. When President Clinton was in office, Democrats demanded that they all be filled. Senator Joe Biden, for example, said in March 1997 that "the D.C. Circuit needs 12 judges to handle its complex caseload." Senator Patrick Leahy, now Judiciary Committee chairman, said that "numbers do not tell the whole story."

A solid case has already been made that this court needs no more than 11 full-time judges. Conservatives should not now abandon that position just because President Bush is nominating judges. But though the court is now nearly 30% below even that low level, Democrats who once demanded it be full are blocking two superbly qualified nominees.

President Bush nominated John Roberts and Miguel Estrada to fill two of these vacancies more than six months ago. Neither has even received a hearing. It's not as if the Senate has been busy processing other judicial nominees. Only 27 of President Bush's 64 nominees have received a hearing and only 18 have been confirmed. The Senate confirms an average of 72% of a new president's first-year nominees in the first year. This year, the Senate has confirmed just 28%.

No, the Democrats are blocking Roberts and Estrada because they want to. For Mr. Roberts, it's not the first time. The first President Bush nominated him to that court but Democrats, who also controlled the Senate back then, also refused to grant him a hearing.

Mr. Roberts is a partner and head of appellate practice at the prestigious Hogan & Hartson firm here in Washington. He clerked for then-Associate Justice William Rehnquist on the U.S. Supreme Court and was Principal Deputy Solicitor General in the first Bush administration. He has argued 33 cases before the Supreme Court.

Mr. Estrada is a partner at the prestigious Gibson, Dunn & Crutcher firm here in Washington. He clerked for Associate Justice Anthony Kennedy, was an Assistant U.S. Attorney in the first Bush administration and Assistant to the Solicitor General in the Clinton administration.

Even the liberal American Bar Association had to conclude that each of these men is well qualified for service on the D.C. Circuit.

Criticism of Roberts and Estrada has a common focus on the results or positions they advocated as lawyers rather than on their view of a judge's proper role. Liberals, for example, attack Mr. Roberts for representing what they believe are too many business clients. Even if this were a useful way of evaluating lawyers or judicial nominees (and it's not), Mr. Roberts also represented the 19 states suing the Microsoft corporation for allegedly violating the antitrust laws.

Conservatives, strangely enough, also attack Mr. Estrada for a position they don't like. Pro-life groups had argued to the Supreme Court that the federal racketeering statute should not be used against abortion clinic protesters. Social protesters, they said, pursue a cause while gangsters pursue economic gain. Mrs. Smith, in other words, is not John Gotti.

That may be a good idea, but it's not what the statute says. There's no exception in there for social protesters, no requirement of showing economic gain. It's just not there. A judge who follows the law, therefore, has to conclude that - at least as it stands now - the statute can be used against pro-life protesters. The Supreme Court ruled this way unanimously.

Mr. Estrada argued the correct position in an amicus brief on behalf of the United States. He insisted that the statute was unambiguous and the Court should not give it a different construction, that is, should not re-write it. Though Mr. Estrada's position, and the Court's ultimate decision, yielded liberal or pro-abortion results, it was the correct decision.

Pro-lifers attack the Supreme Court's decision in Roe v. Wade for making up a provision of the Constitution that does not exist. Yet they demanded in this case that the Court make up a provision of the statute that does not exist. Either courts can make up stuff or they can't; conservatives have always argued that judges must follow rather than make the law and are wrong for criticizing Mr. Estrada for his correct position in this case.

Last week, Senate Republicans held a press conference and released a letter demanding a Judiciary Committee hearing for Roberts and Estrada. All 49 Republicans signed the letter, describing the nominees' credentials and their support from various organizations and interest groups.

Unfortunately, while they also made much of Mr. Estrada's Hispanic heritage (he emigrated to the U.S. from Honduras as a teenager), they never addressed the real issue. A nominee's resume is important, but pales next to the kind of judge he's going to be. It should not make us feel better if it's a Hispanic, or a black, or a female judge who starts re-writing the law and taking away our freedom. And since Democrats and their liberal allies already have the bean-counting game cornered, Republicans should just stick to the real issue and not waste time pushing the diversity button.

These are just two of the many outstanding nominees President Bush has sent to the Senate. Democrats who once whined about vacancies, crying that "judges delayed is justice denied," should do their constitutional duty and confirm them.
Free Congress Foundation

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AS I recall Clinton did it during an August recess, and two Christmas' recess. The Republican Senate Majority, at that time, did nothing, Not even a protest.

The Democrats can do behind the scene actions wherein their media enablers/apologists will not report nor protest any move. Whereinas any similar Republican action wpuld be met with howls of protests that the Republicans cannot place such matters before a public debate. That their candidates are not truly qualified...You know the drill.

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