- The Washington Times - Wednesday, June 6, 2001

Evidence for the Democrats impending scorched-earth confirmation strategy comes in three categories. First, Democrats have obstructed Republican nominees before. From the minority or majority, Democrats have long used every confirmation tool at their disposal to pursue their goals for the judiciary. As the Congressional Research Service found, for example, Democrats killed more Republican nominations by refusing to hold Judiciary Committee hearings during 1987-1992 than Republicans killed Democrat nominations during 1994-2000.
Even more telling is what happened the last time Democrats controlled the Senate during the first year of a Bush presidency. In 1989, they set the modern record for the fewest confirmations with just 15 all year. In 2001, Democrats will beat that record.
Dont be fooled by incoming Majority Leader Tom Daschles recent comments appearing to remove the filibuster from their confirmation arsenal. While he said on CNN last weekend that he "could not conceive of using the filibuster" to defeat Republican nominees, Democrats have filibustered Republican nominees to all three levels of the federal judiciary. Mr. Daschle also said that Democrats "criticized that in the minority. Were not going to be criticized for it now that were in the majority." Yet Democrats have criticized nominee filibusters while in the minority only when a Democrat was making nominations.
Of the 945 judicial nominees confirmed since 1980, fewer than 20 received even 25 votes against them. The top four were Republican nominees opposed by Democrats, one of whom the Democrats tried to defeat with a filibuster.
Second, Democrats are obstructing Republican nominees now. Even from the minority, Democrats already have begun an aggressive obstruction campaign, blocking scheduled Judiciary Committee hearings and votes, threatening filibusters, vowing to use ideological litmus tests and demanding that individual senators be able unilaterally to veto nominees. In fact, Mr. Daschle himself said just a few weeks ago that he was prepared to use the filibuster to gain that unprecedented veto. Though Sen. Ted Kennedy terminated that veto when he chaired the Judiciary Committee in the 1970s, and Sen. Joe Biden rejected it as chairman in the 1980s, look for incoming chairman Patrick Leahy quickly to add this weapon to the obstruction arsenal.
The 42 votes against Attorney General John Ashcroft, the 43 votes against Undersecretary of State John Bolton and the 47 votes against Solicitor General Ted Olson signal an unprecedented and concerted attack on presidential nominees. The Senate has taken 144 roll call votes on nominees to all positions in the last dozen years and these three are in the top five receiving the most "no" votes. And Sen. Charles Schumer, leader of the Democrats confirmation wrecking crew, says that judicial nominations will receive harsher treatment than these.
Third, Democrats have promised to obstruct Republican nominees in the future. Mr. Schumer said the Ashcroft vote was a "shot across the bow" to the Bush administration with regard to future judicial nominations. Dont be fooled by the Daschle/Schumer good-cop/bad-cop game. Mr. Daschle said on CNN that "we want to show real fairness, and that includes judicial nominees … I dont think there should be a litmus test." Mr. Schumer said, on the other hand, that Democrats would stop the appointment of "right wing judges." Mr. Schumer will win and the litmus test will become standard confirmation operating procedure. And Mr. Kennedy predicted that Democrats would now use an "additional test" in addition to competence, integrity and temperament whether nominees support abortion and the Roe vs. Wade decision legalizing it. Thats a litmus test. Mr. Leahy also says Democrats will not confirm nominees who will "shift the balance of the courts." Its no wonder they want to freeze the status quo; after 374 Clinton appointees, 55 percent of all full-time federal judges were named by Democrats. Funny, theres no record of these Democrats being concerned with balance in 1993, the last time the White House changed partisan hands.
Dont expect any hearings any time soon. In June 1998, with just 72 vacancies, Mr. Leahy said "I hope the Committee will not delay in scheduling the additional hearings we need to hold to consider the fine men and women whom the president has nominated to fill these important positions." Yet recently, with vacancies more than 40 percent higher, he led the effort to block a scheduled hearing. And if hearings do occur, dont expect even one per month. Though Republicans packed in an average of six Clinton nominees per hearing in 1998 and 1999 and more than four last year, Democrats wont allow more than three nominees per hearing, and probably fewer.
Never mind Mr. Daschles soothing rhetoric or Mr. Leahys code words. Look at the evidence. Democrats have obstructed, are obstructing and will obstruct the presidents judicial nominees. They will shut down the confirmation process.

Thomas L. Jipping is director of the Free Congress Foundations Judicial Selection Monitoring Project.

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