- The Washington Times - Thursday, October 25, 2001

With just a few weeks remaining until the Senate adjourns for the year, Democrats are trying to deflect criticism from their confirmation obstruction campaign against President Bush's judicial nominees with a series of false, and sometimes bizarre, claims. Let's clear away a little of the smoke.

More than 100 judicial positions sit vacant across the country, the highest level in more than seven years. In July 1998, when he was in the partisan minority, Judiciary Committee Chairman Patrick Leahy set an important standard: "The Senate has not even kept up with normal attrition … let alone taken the type of concerted action needed to end the judicial vacancies crisis." As Don Lambro outlined Oct. 22 in The Washington Times, this situation takes on dangerous new significance since Sept. 11: "Dangerous backlogs and delays that prevent the swift and sure delivery of decisions needed to protect all of us from the threats that now loom over our country."

The now-Democrat Senate has failed the Leahy standard; vacancies are more than 29 percent higher than when President Bush took office. Oh, by the way, vacancies are 56 percent higher than when Mr. Leahy set that standard.

The Democratic Senate has also failed to meet another of Mr. Leahy's confirmation standards. In January 1998, with just 83 vacancies, he insisted that the Judiciary Committee should hold a nomination hearing at least every two weeks and the Senate should confirm at least three judges per week. Under his leadership, the Judiciary Committee has held hearings on just 19 of those 60 nominees, allowing fewer than half the nominees per hearing as when Republicans processed Bill Clinton's picks. The Senate has confirmed just 12 of 60 nominees this year, less than one-third its average annual rate over the past two decades.

To justify this obstruction campaign, or just to confuse everyone, Democrats are making some claims that don't even pass the laugh test.

Mr. Leahy claims, for example, that the Senate is "ahead of the pace of confirmations for judicial nominees in the first year of the Clinton administration." This is an outrageous distortion, even for a wad of political propaganda, and an honest evaluation shows just the opposite is true.

By the time President Clinton started making nominations in 1993 (Aug. 6), President Bush this year had sent 44 nominations to the Senate. Because of the lengthy evaluation process, nominations made later in the year are less likely to be confirmed. Thus it's no surprise that the Senate in 1993 confirmed two-thirds of its annual total in November. Don't forget that Democrats ran the Senate in 1993; they would gladly have confirmed as many Clinton nominees as possible. Since the Senate cannot confirm nominees who do not exist, they confirmed as fast as they could.

Exactly the opposite is true this year. Mr. Bush made more than two-thirds of his nominations before the Senate's August recess. The Senate in 1993 confirmed just nine nominees by Nov. 1 because it had few nominees to consider; the Senate this year has confirmed 12 nominees despite having dozens to choose from. Democrats in 1993 went as fast as they could; Democrats this year are going as slow as they can.

Still, the Senate in 1993 confirmed 88 percent of the nominations President Clinton made by November 1. Just to keep pace with 1993, the Senate must confirm at least 41 more nominees. At the Leahy three-per-week rate, this will take 14 weeks to accomplish, into next February.

Another way to evaluate the confirmation process goes beyond individual statistics about confirmations and vacancies and measures confirmation progress throughout the year. The Leahy standards, for example, dictate that a high vacancy level should result in a high confirmation rate. Dividing the number of judicial vacancies on a given date (say, Oct. 1) by the number of confirmations that year prior to that date indicates whether the Senate is following this standard. A higher score on this "Confirmation Obstruction Index" indicates few confirmations in the face of high vacancies.

Senate Democrats claim they are pure as the driven snow and that Republicans blocked every Clinton nominee in sight. Yet Democrats this year have a confirmation obstruction score more than four times the highest score Republicans ever achieved under Mr. Clinton. No matter which way you cut it, the current confirmation obstruction campaign is real, deliberate, and beyond anything America has seen in many years.

Very real differences exist between Republicans and Democrats about the kind of judge America needs. Those differences, however, should be thoroughly and openly debated. Democrats once demanded this open process, demanded hearings and votes, arguing that a productive confirmation process was the Senate's constitutional duty. That was then, this is now when they have the chance to gore some other ox. Rigging the rules and stalling the process perhaps reveal Democrats' fear that they'll lose that debate.

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

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