- The Washington Times - Monday, October 22, 2001

The war over the nation's judiciary is a familiar battleground, but one whose recent skirmishes are failing to generate the usual noise and headlines. Maybe it's because of the unexpected camouflage of the war on terrorism that Senate Democrats are now unleashing a kind of ferocity and vindictiveness which just doesn't seem to count as "politics-as-usual" anymore.
Call it the Leahy doctrine. Jealously guarding the political logjam that is keeping nearly all of President Bush's nominations from the federal bench, Senate Judiciary Committee Chairman Patrick Leahy seems to be following a strategy to prevent any appeals court nominee committed to the legal doctrine of judicial restraint from even having a hearing, let alone a floor vote.
The deadlock over the D.C. Court of Appeals offers a case in point. Now down to eight active judges, the circuit requires 10 active judges to carry its workload. Following Judge Stephen Williams' decision to retire from active service, Chief Judge Douglas H. Ginsberg informed Mr. Leahy and Sen. Charles E. Schumer in August that, without the confirmation of two new judges by Sept. 30, "the court will likely find it necessary to delay until next term [September 2002-June 2003] hearing cases that would otherwise be argued and decided this winter and spring." Mr. Bush has already named two conservative nominees with sterling credentials to the D.C. circuit, Miguel Estrada and John Roberts. So, what has Mr. Leahy done about these two excellent nominees for those two urgent vacancies? Zip.
Senate Republicans are now taking action. With "the full backing" of the White House as this newspaper's Donald Lambro reported, quoting a Senate Republican leadership official they have devised a tough strategy to force Senate Democrats to break up the Leahy logjam. Republicans hope that, by blocking action on the foreign aid bill and other legislation, they can make Senate Democrats move on the 52 judges Mr. Bush has nominated, 44 of whom were named before the August recess, including Messrs. Estrada and Roberts.
To date, only eight of the president's nominees have been confirmed. This works out to a measly 15 percent confirmation rate for the president not too good compared with his predecessors' success rates of 93 percent and up. No wonder the White House supports playing "hardball" against Mr. Leahy's nasty stall strategy. As the Republican leadership official explained, the White House is "concerned that the holdup of these nominees threatens the war on terrorism, because these judicial vacancies need to be filled as soon as possible to act on law-enforcement requests."
So, the Senate war relates back to the terrorism war, after all. Even so, and despite 108 vacancies in the federal judiciary (with 39 of them classified as "judicial emergencies"), all Mr. Leahy and his staff seem to do about it is keep the logjam in place. According to Sen. Orrin Hatch, Mr. Leahy has been "pretty irritated, and not in the mood to be helpful. If anything," he added, "he was threatening. I've heard payback talk."
Frankly, this sounds more like "The Sopranos" than the U.S. Senate. Mr. Hatch went on to say that Mr. Leahy told him that any Republican voting against the foreign aid bill "would not get the federal judges from their state confirmed." While Mr. Leahy has denied Mr. Hatch's charge one senator's word against another he hasn't gone so far as to deny a corroborating charge leveled by two Colorado Republicans, Sens. Wayne Allard and Ben Nighthorse Campbell. They told Roll Call that, in response to their recent request to expedite hearings for three nominees from their state, Mr. Leahy asked about their votes on the foreign aid bill. "If I go ahead and vote for cloture, you'd move my judges to the top?" Mr. Allard recalled asking Mr. Leahy. "He said, 'Yep.' " His staff actually suggested Mr. Leahy's comments were meant as a joke.
Ha ha. But who gets the last laugh? On Thursday, four district judges were unanimously approved by the committee, so maybe the Republicans' tactics are working. But there is much more to do. Scores of able judges are still waiting to don their robes. The spiteful partisanship of Mr. Leahy shouldn't stand in their way.


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