- The Washington Times - Tuesday, July 25, 2000

No one can claim that Senate Republican leaders don't have a strategy for anything. When it comes to confirming Clinton judicial nominees, their strategy is called "Let's Make A Deal." In the most recent episode of this partisan game, the GOP traded 16 lifetime appointments to the federal bench for one term-limited appointee to the Federal Election Commission.
Mr. Clinton's 369 judges to date leave him just nine shy of President Reagan's two-term appointment record. Those led to believe that Republicans have blocked Clinton nominees should consider an important fact. Though Mr. Reagan faced a Senate of his own party for six years, Mr. Clinton has appointed judges at a faster rate while facing an "opposition" Senate for six years. Since becoming the majority, Republicans have handed Mr. Clinton a 240-1 judicial appointment run.
In a "Dear Colleague" letter dated Oct. 19, 1998, Sen. Chuck Hagel asked: "What does the Republican Majority in Congress stand for?" The GOP's latest deal will certainly not help answer that question. Twenty-eight Republicans who the National Right to Life Committee says voted 100 percent pro-life in 1999 supported Mary McLaughlin to the U.S. District Court.
She received a 1998 award from the ACLU for her pro-abortion activism. Gerard Lynch was also confirmed to the U.S. District Court in New York. Once a law clerk for the late activist-extraordinaire Justice William Brennan, Mr. Lynch has said that giving the Constitution "meaning for the present" is "a simple necessity." He wrote in a law journal article that the Supreme Court exists to decide whether "short-term political objectives" are consistent with "fundamental moral values." Yet voting for him were Republican senators who in 1997 passed a resolution condemning judges who "legislate from the bench by imposing their personal preferences or view of what is right or just." Two things explain the Senate GOP's collaboration with Mr. Clinton in stacking the federal bench.
The first is fear. Sen. Orrin Hatch, Judiciary Committee chairman, has told grassroots conservatives in Utah that he keeps pushing Clinton nominees because he fears Democrats blocking future Republican nominees. He should remember, however, that Democrats do not need an excuse, revenge, or anything else, to block Republican judicial nominees. Sen. Joe Biden blocked all Reagan nominees in 1985 until the confirmation pace slowed. Judicial vacancies were much higher when Democrats controlled the Senate in the Reagan-Bush years than they are today. Even from the minority, more than twice as many Democrats filibustered Republican nominees to all three levels of the federal judiciary than majority Republicans have ever filibustered Democratic nominees. Democrats killed nearly twice as many Republican nominees by denying them. Judiciary Committee hearings as the GOP has done to Democratic nominees.
Democrats defeated Republican nominees in the Judiciary Committee while no Democratic nominee has ever been defeated there. Democrats allowed an average of 49 pending nominations to expire at adjournment of the 102nd and 103rd Congresses while Republicans only left an average of 23 nominations pending when they adjourned the 104th and 105th Congresses. The only precedents these 'fraidy-cat Republicans care about are the ones they set themselves. Democrats can apparently act with impunity.
The second explanation is that Republican leaders simply do not believe in the principles laid down by America's Founders. When Majority Leader Trent Lott took his position in July 1996, he said on the Senate floor that philosophical principles were not his "basis or guide stick" for deciding to move judicial nominees. Instead, he said he was just trying "to get the calendar acted on." It's right there in the Congressional Record of July 9, 1996, on page S7503. In October 1998, Mr. Lott traded 17 judges for Mr. Clinton's signature on an appropriations bill. Last fall, Mr. Lott promised conservative grassroots leaders he would not allow votes on two controversial appeals court nominees. Six weeks later, he broke that promise and agreed to hold those votes anyway after the Senate confirmed a friend of his to the board of directors of the Tennessee Valley Authority.
Last February, Mr. Lott rebuffed the effort by 18 of his Republican colleagues to block Clinton nominees because Mr. Clinton nominated Bradley Smith, Mr. Lott's choice, to the Federal Election Commission. Mr. Lott traded 16 judges and 43 other appointees for Mr. Smith's confirmation. It's no wonder the Democrats are again threatening to hold appropriations bills hostage in exchange for a judicial ransom; they know how to make Mr. Lott dance to their tune.
Mr. Smith may be the Herschel Walker of confirmation politics. In 1989, the Dallas Cowboys received a dozen draft picks and players in exchange for sending Walker to the Minnesota Vikings. The result? The Vikings went in the tank and took a decade to recover while the Cowboys won three Super Bowls. Future Vikings owner Red McCombs said at the time: "How do you give away your team? How do you give away your future?" Americans are asking Senate Republican leaders the same question.

Thomas L. Jipping, J.D., is director of the Free Congress Foundation's Judicial Selection Monitoring Project.

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