Taking Judicial Confirmations To New Lows

The federal judicial confirmation process is unquestionably in need of reform, but there is a more fundamental problem with judicial selection today: basic fairness to President George W. Bush's nominees. It's just not there.

Not long after the inauguration, Senate Democrats held a retreat where they discussed changing the ground rules that traditionally have governed confirmations. A few months later, Senate Judiciary Committee Democrats announced that a nominee's personal political opinions would determine whether he or she would be confirmed. They also claimed the burden of proof now was on the nominees, meaning that an otherwise qualified individual would have to submit his or her personal views to Democratic litmus tests, even if the nominee believed those personal views have no place in the courtroom. Not surprisingly, the nominees who have not met this arbitrary burden of proof are those whom committee Democrats were determined to block in the first place.

This politicization of the process has had a significant effect on the nominees waiting for Senate action. The first two years of the Bush administration saw a dramatic slowdown in the number of circuit court nominees who were confirmed. Former presidents Jimmy Carter, Ronald Reagan, George H.W. Bush and Bill Clinton each saw most of their circuit court nominees confirmed -- 100 percent, 95 percent, 96 percent and 86 percent, respectively. For George W. Bush, that number is a paltry 53 percent and, unlike his predecessors, he has had many of his initial nominees ignored completely. Highly qualified nominees spent most of the last Congress waiting in limbo, and efforts to reach out to Democrats -- an appointment commission in California, the resubmission of Clinton nominees Roger Gregory and Legrome Davis and the decision not to nominate several other individuals -- got them no closer to a Senate vote.

The message from the Democratic leadership to Bush nominees is this: If you've taken a political position we don't like, you're not going anywhere. You'll fail the political litmus test, and nothing you say about understanding the apolitical role of a judge will meet that burden of proof.

For nominees who haven't taken political positions, there's no difference. Without committing to the Democrats' positions on divisive issues, you'll fail the litmus test. Discuss your personal views, or you won't meet the burden of proof and the Democrats will insist they don't know enough about you.

It sounds incredible. But that is just what Bush's nominees have had to deal with.

Miguel Estrada was nominated to the U.S. Court of Appeals for the District of Columbia Circuit on May 9, 2001. He received a hearing last September, though no committee vote until after the November election, and because all but four of the Democrats are filibustering his nomination, he won't get a Senate vote anytime soon.

Few nominees come with Estrada's qualifications. He is a well-respected attorney who served as an Assistant to the Solicitor General, an Assistant U.S. Attorney, and a clerk for Supreme Court Justice Anthony Kennedy. He has argued 15 cases before the Supreme Court and earned the highest possible rating from the American Bar Association (ABA). His colleagues on both the left and the right praise him as a professional and competent attorney. Nevertheless, he can't get a fair deal.

The filibustering Democrats claim he did not answer questions about his judicial philosophy -- a claim that is patently false. In fact, Estrada said he would endeavor to set aside his personal views, following the law and Supreme Court precedent. Their real beef is with Estrada's refusal to discuss political ideology, an admirable decision on his part, since he is a nominee for an impartial federal judgeship and not a candidate running for political office. If the obstructionists really cared about getting legitimate questions answered, they would have accepted the offer to ask him more questions or meet with him, or even held a second hearing in exchange for a guaranteed vote. But they didn't; only one Democrat bothered to meet Estrada and submit any questions. That's hardly surprising, since the filibuster has little to do with the qualifications of Estrada.

What they really need, the filibustering Democrats insist, are the memos on which cases to appeal and file friend of the court briefs Estrada wrote for the U.S. Solicitor General's Office. They know these are useless, but they also know no self-respecting administration would release them, waive attorney-client privilege and compromise its ability to get honest and forthright counsel. The fact that every living former Solicitor General has written to condemn the demand doesn't faze them at all. It's the perfect deal-killer -- something the Democrats don't need and know they'll never get. It's not about being fair. It's about winning at any cost.

Priscilla Owen, nominated to the 5th U.S. Circuit Court of Appeals on the same day as Estrada, also has seen very little in the way of fairness during the last two years. Owen, a Texas Supreme Court justice, also has received a unanimous "well-qualified" rating from the ABA and bipartisan support. She also was denied a Senate vote in the last Congress, despite support from a majority of Senators.

Last summer, Owen endured a smear campaign orchestrated by left-wing interest groups and abetted by Judiciary Committee Democrats. They called Owen's ethics into question despite her going above and beyond what is required when Texas judges stand for election. They blamed her for following state law instead of ruling on the basis of whom the parties were. And her application of Supreme Court precedent to the Texas abortion parental notification law was called judicial activism by Democrats who want every bit of that precedent followed when it isn't the fate of a Bush nominee at issue.

Owen refuted every one of these allegations at her hearing, but most of the Democrats ignored her answers and dismissed the facts. That was hardly fair, but in her case even the pretense of fairness was dropped. The Democrats scheduled her committee vote for the day after she received 20 written questions from one senator, two days after receiving 23 from another and a few days after getting 32 written interrogatories from two more. A fair process would have let her respond, but she was never meant to have that chance. She had the votes for confirmation, so all that mattered was defeating her nomination in committee.

Federal district judge Charles Pickering of Mississippi, nominated to the same court as Owen, on the same day, was portrayed as a racist despite a clear record as an advocate of racial reconciliation. He also was defeated in committee despite having the votes in the Senate for confirmation. Pickering was supported by many blacks in his hometown who know the truth about his record, but he was in the radical left's crosshairs and the committee was unconcerned with facts and fairness.

John Roberts and Deborah Cook, also nominated in May 2001, are still waiting for a Senate vote. Roberts originally was nominated to the D.C. Circuit more than a decade ago and is arguably the most highly regarded appellate lawyer in the nation. Cook is a respected justice of the Ohio Supreme Court nominated to the 6th Circuit. Neither got a hearing when the Democrats ran the Senate and, despite sharing a marathon 12-hour hearing with another circuit court nominee in January, Democrats tried to filibuster their nomination in committee on the grounds that they hadn't had time to ask proper questions. They've told Republicans they will block floor action on both until a second hearing is scheduled.

The list of nominees who have sampled the Democratic leadership's brand of fairness goes on and on. Nothing excuses the unfair treatment of this resident's nominees -- not even the claim from some on the left that Republicans did the same thing.

Clinton came just five judges short of Reagan's record for judicial confirmations. Nearly two-thirds of his judges were confirmed by a Republican-controlled Senate -- without real filibusters, without nominees defeated in committee and without the systematic obstruction used against almost all of President Bush's initial nominees. Most of Clinton's highly controversial nominees were confirmed with Republican votes, including some with records of judicial activism who were nominated to the nation's most activist appeals court. Ruth Bader Ginsburg, when nominated to that ultimate prize, the Supreme Court, only received three negative votes. Justice Stephen Breyer only received nine. It's difficult to imagine similar support from the Democrats for Bush's eventual Supreme Court nominee.

Like other presidents, Clinton left office with some nominees unconfirmed. Several whom Democrats mention to justify their obstruction -- Helene White, Enrique Moreno and Kathleen McCree Lewis, for example -- were not supported by both home-state senators, a prerequisite for Bush nominees these last two years, according to the Democrats. When Clinton's successor was elected in November 2000, there were 66 vacancies and 41 pending Clinton nominees, and of that group, only 26 had home-state support or had been nominated with enough time for the Republican Senate to act. In contrast, the Democrat Senate left 100 vacancies and nearly 60 George H.W. Bush nominees pending when Clinton was elected president in November 1992.

While the confirmation process has been confrontational for some time, the Democrat leadership in the Senate has taken it to a new low. Whether conducting campaigns of character assassination or the first real filibuster of a circuit court nominee in the history of the Republic, they have signaled that fairness toward Bush's nominees is of little consideration. Clinton and every other predecessor of President Bush had the opportunity to appoint judges who shared their judicial philosophy, and Bush should not be the exception simply because his nominees take a constitutionalist approach to the law.

No one argues that the Senate should be a rubber stamp, but it has a duty to act, and act fairly. Democrats and Republicans must take that responsibility seriously, and allowing Estrada a vote is the right way to start.

Do the Senate Rules allowing filibuster, as applied to the confirmation process, vilolate the Constitution and oath of office?

US Senate: Art & History Home > Origins & Development > ... I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

US Senate: Art & History Home > Origins & Development > Powers & ...

Using the filibuster to delay debate or block legislation has a long history. In the United States, the term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill.

In the early years of Congress, representatives as well as senators could use the filibuster technique. As the House grew in numbers, however, it was necessary to revise House rules to limit debate. In the smaller Senate, unlimited debate continued since senators believed any member should have the right to speak as long as necessary.

In 1841, when the Democratic minority hoped to block a bank bill promoted by Henry Clay, Clay threatened to change Senate rules to allow the majority to close debate. Thomas Hart Benton angrily rebuked his colleague, accusing Clay of trying to stifle the Senate's right to unlimited debate. Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote -- a tactic known as "cloture."

The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to evoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.

Senate Is to Advise And Consent, Not Obstruct and Delay The Framers Envisioned A Narrow Role for The Senate in The Confirmation Process.

Congress, the Court, and the Constitution (LOUIS FISHER) The framers expected Congress to play a pivotal role in debating and legislating on constitutional issues. Most of the important constitutional issues in the early decades were decided almost exclusively by Congress and the President. There were few decisions by federal courts to guide the elected branches. The record of this early period has been ably covered by David Currie in a number of law review articles, brought together in his book The Constitution in Congress (1997). As he explains in the concluding chapter, it was ''in the legislative and executive branches, not in the courts, that the original understanding of the Constitution was forged.''

Congress, the Court, and the Constitution(first excerpt) If we are serious about the proposition that all the branches of the national government share a coordinate authority to interpret the Constitution, with none of them commanding the obedience of the others as to every sort of constitutional question, then it is past time the Congress began to assert its co-equal authority in practical ways. This reassertion of congressional responsibility can begin with the breaking of some comfortable habits.

First, during Senate confirmation hearings on nominations to the federal bench at all levels, senators should cease requiring nominees to declare their allegiance to the ''Marbury myth'' that the Supreme Court has the last word on constitutional questions. The Senate should instead demand just the opposite—a clear statement from every nominee that he or she recognizes the difference between judicial review (properly understood) and judicial supremacy. Other matters of what is infelicitously called ''judicial philosophy'' should also be central to confirmation hearings, but this is a good place to start.

Congress, the Court, and the Constitution(first excerpt) During the antebellum period, constitutional interpretation was performed continuously by all three branches of the federal government. The great debates in Congress during this period were arguments over the meaning of constitutional provisions. The record is literally permeated by assertions of legislative duty to interpret the Constitution both rightly and in accordance with accepted canons of construction.(see footnote 165) In the 1790s, debates in Congress on the meaning of key provisions in Articles I, II, and III shaped the contours of the federal government as it was to exist for a century-and-a-half.(see footnote 166) At the same time, during the first half-century of the republic, presidential vetoes of congressional acts were exercised almost solely on constitutional grounds, and most of these were accompanied by explicit, uncontested assertions of executive authority to interpret the fundamental law.(see footnote 167)

Perhaps President Lincoln summed it up best in his first inaugural address: quote,

''I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court . . . At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole of the people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having . . . resigned their Government into the hands of that eminent tribunal.''(see footnote 11)

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