- The Washington Times - Wednesday, May 9, 2001

In making his first judicial nominations this week, President Bush is following the advice of his harshest left-wing critics. Writing in the July 16, 1999, San Francisco Chronicle, Nan Aron of the leftist Alliance for Justice insisted that the president "has a duty to fill judicial vacancies and appoint jurists who share his views." Mr. Bush is doing just that.
Ms. Aron, her leftist friends and Senate Democrat allies will no doubt spin some yarn about how that advice applies only to Democrat presidents nominating activist judges. As the judicial selection process formally gets under way, those folks are indeed doing a whole lot of squirming and shape-shifting. Here are some recent examples.
For the second time since June 1994, judicial vacancies are in the triple digits. Democrats and their leftist allies once decried far lower vacancy levels. In March 1998, Sen Dick Durbin called 84 vacancies "a nationwide crisis" and in August 1999, President Clinton called 65 vacancies "a mounting vacancy crisis." Senate Minority Leader Tom Daschle said in March 2000 that 75 vacancies was "a dire shortage" of judges.
In September 1995, the Alliance for Justices legislative counsel said in an Insight magazine interview that with just 52 vacancies the judicial system could barely function. Total vacancies are nearly 100 percent higher today. And Ms. Aron herself, according to the October 1998 ABA Journal, was urging the Senate to "confirm more judges" when there were just 69 vacancies. Last July, Sen. Patrick Leahy said that 21 appeals court vacancies meant the judiciarys "ability to administer justice for the American people is being hurt." Appeals court vacancies are 50 percent higher today.
Mr. Bushs opponents have changed their tune on other issues. Senate Democrats are trying to extort an absolute veto by individual senators to nominations in their states. Such an extreme partisan policy has not existed for decades, changed by none other than Sen. Ted Kennedy when he chaired the Judiciary Committee and followed by Sen. Joseph Biden during the 1980s. In a letter to President George Bush dated June 6, 1989, Mr. Biden wrote that opposition by a home state senator "will not preclude consideration of that nominee unless the administration has not consulted with both home state senators prior to submitting the nomination to the Senate." In October 1993 Mr. Biden repeated in a Senate floor speech that consultation "does not allow for, even on a judicial nominee, for a single senator to have a veto power." These clear words have now become politically inconvenient, so they are changing the definitions. Under President Clinton, "consult" did not mean a veto; under President Bush, it does.
Heres another about-face. Back in 1999, some Senate Republicans tried to block all Clinton judicial nominees because the president abused his authority to make so-called recess appointments. Democrats objected, Roll Call quoting Mr. Leahy saying in January 2000 that "The target here may be the president, but the hostage is the criminal and civil justice system." Under Mr. Clinton, blocking judicial nominees even over a fundamental constitutional principle was wrong; under President Bush, blocking them even over a partisan perk is fine.
Another Democrat about-face is on using ideological litmus tests to reject nominees failing to pledge they will rule correctly on certain issues. On July 10, 1997, Mr. Leahy said he, "would like to believe that … no senator is imposing an ideological litmus test on judicial nominations." On March 1, 1998, he said: "Partisan and narrow ideological efforts to impose political litmus tests on judicial nominees and to shut down the judiciary must stop." And on Oct. 14, 1999, he said, "you cannot have a small clique decide they want to know exactly how judges are going to rule before they go on the bench, or theyre not going to confirm them."
The Lawyers Committee for Civil Rights warned in September 1997 that ideological litmus tests "threaten the vital independence of the judiciary and politicize the process for nominating and confirming federal judges." And the Brennan Center for Justice agreed in an October 1999 report that litmus tests are "a selection method that undermines the independence of our third branch of government." Yet Democrats used the litmus test on Attorney General John Ashcroft and, following his confirmation, pledged to use it even more aggressively on judicial nominees.
So lets recap here. When Democrats ran the Senate, they denied home state senators a veto on nominations; with Republicans in charge, they demand the veto. When vacancies were lower under a Democrat president, Senate Democrats and left-wing groups urged faster confirmations; with higher vacancies under a Republican president, they want slower confirmations. With a fundamental constitutional principle at stake, they said blocking judicial nominees threatened the legal system; with a partisan perk at hand, they vow to stop everything. As long as a Democrat was nominating judges, litmus tests were taboo; with a Republican president sending up nominees, they are standard operating procedure.
Senate Democrats and their leftist allies will pursue the very course they once condemned, best described in the Alliance for Justices 2000 annual report (the names have been changed to protect the hypocritical): " intransigence and continued attempts to prevent the administration from filling the federal judicial vacancies left many courts with serious case backlogs and frustrated President s goal of leaving behind a fully staffed judiciary."
President Bush is following the advice of his left-wing critics; perhaps they should practice what they preach.

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


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