The judges.
Posted on 11/09/2002 8:51:29 AM PST by Pokey78
ON JUDGES, things will be different. The wars over judges of the past two years were made possible by the simple fact that the Democrats controlled the Senate. They used their power to block an unprecedented number of President Bush's appeals court nominees. Now that the Democrats constitute the minority, the outlook for Bush's nominees--including any he might make to the Supreme Court--is considerably brighter.
The first thing that will change is the Judiciary Committee. It will have a new chairman--Orrin Hatch, replacing Patrick Leahy--some new members, and perhaps fewer members in total.
In June 2001, after James Jeffords left the GOP and became an independent allied with Democrats for purposes of Senate organization, the committee, evenly split at 9 to 9, added a tenth Democrat. If Republicans decide to maintain a 19-member committee, one Democrat must leave, the obvious candidate being the most junior Democrat, John Edwards. Republicans are considering shrinking the committee to 17 members, in which case a second Democrat would have to depart, probably the next most junior, Maria Cantwell.
One Republican--Strom Thurmond, who is retiring--will leave the committee. So the membership will include one new Republican even if the total drops to 17, two if it remains at 19. Candidates include Thurmond's successor, Lindsay Graham, and John Cornyn, the former Texas Supreme Court justice and attorney general who will take Phil Gramm's seat. Aides to Republican senators say that if Democrat Mary Landrieu loses the December 7 runoff in Louisiana and Republicans thus increase their majority to 52, they may seek a two-seat edge on the committee.
Whatever its size and membership, the committee will operate in ways congenial to Bush. The president's complaint with the committee under Leahy has concerned mainly its handling of appeals court nominees: It has failed to schedule hearings for some nominees and timely hearings for others, to vote on some nominees who did get hearings, and to allow the full Senate to vote on two nominees it rejected on 10-to-9 party line votes. Had the committee reported those nominations--of Charles Pickering and Priscilla Owen, both designated for the Fifth Circuit--to the floor even with negative recommendations, majorities including some Democrats would have voted to confirm.
Bush also has complained about the committee's "mistreatment" of some nominees, Owen in particular. In Dallas on November 4 campaigning for Cornyn, Bush asked his audience to consider "what happened to one of our finest Texans." He pointed to her stellar record as a private lawyer and a Texas Supreme Court justice, and the high regard in which she is held by the Texas bar and the American Bar Association. But "because these people"--meaning committee Democrats--were "playing politics, petty politics, . . . her record was distorted and she was denied a seat. She was grossly treated."
Some numbers help tell the story of Democratic obstructionism (or success, from their point of view): Of Bush's 32 nominees to the appeals court, the Senate confirmed only 14, or 44 percent. During comparable periods--the first two years of a presidency--the Senate typically has confirmed a much higher percentage of appeals court nominees. (For Ronald Reagan, it was 95 percent; George H.W. Bush, 96 percent; and Bill Clinton, 85 percent.) What especially irritates Bush is the lack of hearings: On November 15, no fewer than 15 of his appeals court nominees will have waited in vain for more than a year to have hearings scheduled.
At the White House six days before the elections, Bush announced a plan "to ensure timely consideration of judicial nominees." The plan proposes that the Senate Judiciary Committee hold a hearing within 90 days of receiving a nomination, and that the full Senate hold an up-or-down floor vote within 180 days. The plan drew little press notice, and committee Democrats summarily rejected it. Two days after the election, Bush made another pitch for it.
Were the Senate to adopt Bush's recommendations, it would do so in new rules--which Hatch favors. But it seems doubtful that the Senate would actually vote to constrain its own power. In any case, Bush is likely to get what he wants simply because he now has a Senate of the same party: hearings within 90 days and floor votes within 180. What this means is that even in the unlikely event a nominee is defeated in committee, the full Senate will be given the opportunity to vote. A committee will no longer act for the entire Senate.
The election results also will affect the administration's judicial selection. Had the Senate remained Democratic or become more so, demands would have grown louder for the president to compromise on judicial philosophy in choosing appellate nominees. Now, however, the administration can continue to pick judicial conservatives without worrying that Democrats will block them. Bush's judge-pickers may select more, and more-committed, judicial conservatives. Indeed, the election "should embolden them," says a Republican lawyer who has counseled on judicial selection. Meanwhile, potential candidates for the bench who before November 5 might have been wary of being nominated now will be more agreeable to the idea.
The lame-duck Senate is likely to confirm a Sixth Circuit nominee, John Rogers, whose nomination is now on the floor. Republican senatorial aides indicate that the committee might vote on two nominees who have had hearings--Dennis Shedd (for the Fourth Circuit) and Michael McConnell (for the Tenth). The committee probably will take no further action on another nominee who has had a hearing but not a committee vote--Miguel Estrada (for the D.C. Circuit). That nomination became stuck on a request to the Justice Department for papers Estrada prepared as a lawyer in the solicitor general's office during the 1990s. Getting his nomination to a vote, says an aide to a Republican senator, "will take some time"--more than is available in the Senate's last days.
Come January, the president can resubmit the names of any nominees still awaiting action. For that matter, he can resubmit nominees actually rejected by the committee. Both administration officials and aides to Republican committee members expect the president to renominate Owen and possibly also Pickering.
The issue of judicial selection and confirmation is, of course, fundamentally a matter of the role of the courts and how judges should interpret the law. Committee Democrats treated Bush nominees as they did because they didn't want many more conservatives on the appeals courts. That's why they can't be expected to give up easily even though they are in the minority.
Leahy and others will doubtless not forget their complaint that the Republican Senate treated Clinton nominees unfairly, blocking appointments of judicial liberals. And Charles Schumer will probably continue his crusade to make "ideology" an explicit ground for rejecting nominees. But precisely because their party is in the minority, they will be unable to prevail against a nominee--unless they can persuade enough of their colleagues to sustain a filibuster on the floor, a procedure so politically risky that it probably will be reserved for use only against a Supreme Court nominee.
Speaking of the High Court, one consequence of the election results may be to nudge a justice or two toward retirement, an event more likely in 2003 than 2004 since the latter is an election year and no justice wants to announce his or her retirement as the parties prepare for their quadrennial conventions. If the retirement is that of a judicial conservative, committee Democrats are more likely to accept a conservative replacement, reasoning that here you have an even trade. But if the departing justice is a judicial liberal--John Paul Stevens, say--they will insist that a liberal be named in his place for "balance." Bush will be wise to start preparing for that fight now by making substantive arguments in behalf of his judicial philosophy.
Terry Eastland is publisher of The Weekly Standard.
No disrespect to Vermonters, but there are some strange dudes there. One Senator leaks national security information, and the other sells out his political party.
Anyway who watched on C-Span Estrada's giving answers at his Jucicial Committee hearing would readily agree how unqualified he is for being appointed a federal judge to the D.C. circuit.
Bush should be embarrased for nominating Estrada.
Just yesterday Dahasshole was trying to make it sound so good that they had confirmed 44%.
You arn't pulling the wool over some sheeples eyes anymore, Dahasshole.
Did you see Estrada's testimony on C-Span?
I did. Chuck Schumer played word games with him and tripped him up about something extremely obscure.
I don't give a damn how someone testifies before a bunch of arrogant politicians. I care how he understands and rules on Constitutional law.
Estrada was given a "very qualified" by the liberal American Bar Association and will be confirmed by the full Senate.
I didn't know that...
This is quite a change...I don't think I would like it if I was on the other side of the fence.
Why then bother with confirmation hearings, just let the ABA evaluate the candidate?
BTW - Do you think you would be an effective salesperson if you were inarticulate and worse yet had a severe stuttering problem?
Salesmen make their living through verbal communication. Judges don't; in fact, most judges don't do very well speaking in the courtroom, even when they've got an opinion written out for them.
Schumer was playing "gotcha" with Estrada, and he got him.
I'm grateful that Bush will get more of his his judges through, and they're likely to be even more conservative than Estrada.
Leahy screwed the pooch with his obstructionism.
The best was when Ted Kennedy asked Estrada a question in which he expected a yes or no answer.
Estrada said "I'll think about it", Kennedy asked him again, for an answer, again he got the same response. Kennedy then said incredulously, "Is that your answer, I'll think about it?" Estrada just smiled.
Forget Estrada's politics, and that Bush nominated him, this guy has no business being considered for a federal judgeship.
The judges.
Pity.
Pity, indeed. Cry me a river.
Bye Bye Johnny
I think it has proven to be politically risky for Leahy, the soon to be former Chairman of the Senate Judiciary Committee, to condone Clinton. He and the other dems on that committee supported a man who lied under oath, was impeached and disbarred.
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