Skip to comments.

Posted on 12/11/2001 1:42:54 AM PST by kattracks

Capitol Hill (CNSNews.com) - Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) says President Bush is at least partly to blame for delaying the confirmation hearings of his judicial nominees. He made the accusation Monday during a preliminary hearing on the nomination of David Bunning to the United States District Court in the Eastern District of Kentucky.

Leahy acknowledged that the Sept. 11 terrorist attacks, the reorganization of the Senate in July, and the anthrax-related evacuations of the Capitol and the Hart Senate Office Building, where his office is still closed, have obviously contributed to the delays.

But he raised two additional reasons for delays that, he says, are solely the fault of President Bush.

Primarily, Leahy criticized Bush for not giving the American Bar Association (ABA) advance notice of his intended nominees.

"The process worked smoothly and productively until the beginning of this year when President Bush decided he would no longer provide the ABA with the candidates' names prior to nomination," Leahy charged, acknowledging that the president has "the absolute right" to make such a decision.

Roscoe Trimmier, chairman of the ABA's Standing Committee on the Federal Judiciary, says the ABA recommendation is important, and defended against allegations of bias.

"The ABA committee investigates and considers only the professional competence, integrity, and judicial temperament of the nominee," Trimmier claimed. "Ideological or political considerations are not taken into account."

Leahy says withholding the candidates' names from the ABA prior to the public announcement of their nomination has two effects.

"It extends the time the nominee must wait before he can have a hearing by six or eight weeks. I do not count the time, really until the ABA report is completed," he added. "It also eliminates a crucial 'early warning system' for the White House and for us. I wish the president had not shifted that role."

But White House Counsel Al Gonzales responded to both of Leahy's claims in a March 22 letter to the senator.

"We are confident that this procedure, in which the President will welcome and receive input from a variety of interested and diverse parties, will enable the President to nominate candidates of the highest intellect, integrity, and professional qualification," Gonzales wrote.

"Based on the ABA's representation to me that it can complete an evaluation in 20 to 30 days, I am confident that any post-nomination ABA evaluation would not delay the Committee's timely consideration of the President's nominees," he added.

Mario Mandina, CEO of the National Lawyers Association, agrees.

"It really did not reduce, in any significant way, the ability of the ABA to evaluate on a timely basis," Mandina said. "It seems to me that it's a way for the Democrats" to try to bring "the ABA back into the evaluation process."

NLA, which describes itself as an apolitical alternative to the ABA, is currently developing standards for nominee evaluations. Mandina says NLA's standards would be different in at least one respect than those used by the ABA.

"We would try to eliminate the politics from it," he said. "It would be based upon the candidates credentials and ability to be a judge, not on ideology."

The ranking minority member of the committee, Sen. Orrin Hatch (R-Utah) is critical of another area of the ABA evaluation process, as well.

"The ABA does not share any information with the Committee other than its one-sentence conclusion. Even in cases where the decision is controversial, the ABA will not disclose its reasons or rationale," he said.

"I simply find it less than persuasive when I read, as in Mr. Bunning's case, a bare conclusion with no facts or analysis or anything to back it up," Hatch added.

Trimmier argues that absolute confidentiality is essential to the process.

"It is the committee's experience that, only by assuring and maintaining such confidentiality," he said, "can sources be persuaded to provide full and candid information."

Hatch says that rationale is unfounded.

"I also understand the need to keep confidential the FBI files that the Committee is provided for each nominee. If the ... FBI can trust us here with the most sensitive information, then why can't the ABA?" he asked. "Is the ABA information more sensitive than the critically sensitive FBI files?"

An additional criticism by Leahy revolves around a question Democrats added to the paperwork completed by nominees for review by the Judiciary Committee and staff members: Have you been convicted of anything within the past ten years that is a matter of public record?

"For some reason the White House has been reluctant to have judges answer that, and (has been) slowing everything up," he said.

Hatch disagrees with Leahy's characterization.

"That was never the problem," Hatch said. "There were other matters that we had to resolve, which we did."

FBI reports on nominees already contain the information Democrats requested, but those reports are covered by federal privacy laws with criminal penalties for unauthorized disclosures. The Senate questionnaire is not covered by those same laws.

In the past, senators who objected to a nominee because of a conviction could privately call the person aside and offer them the chance to explain the circumstances or withdraw their nomination prior to having the record discussed in a public hearing.

Some Republicans feared Democrats would attempt to derail the nomination process by "ambushing" a candidate over their conviction record, or to embarrass the president by selectively leaking word of a conviction to the establishment media prior to a nominee's hearing.

Committee members and representatives from the White House recently worked out an agreement to allow nominees to answer the question while maintaining confidentiality.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.