- The Washington Times - Thursday, December 12, 2002

On Tuesday, Jan. 7, 2003, a shiny black Chrysler sedan, driven by an Army sergeant, will emerge from the Old Executive Office Building, turn left on 17th Street and head toward the U.S. Capitol. An official from the White House Executive Clerk's Office will accompany the driver, carrying the official papers of about 30 of President Bush's federal judicial nominees.
Arriving at the Capitol, the clerk will take an elevator up one level and walk on to the Senate floor. From the back of the ornate chamber, after the presiding officer recognizes him, the clerk will bellow: "I'm directed by the President of the United States to deliver a message to the Senate in writing." He will bow to the chair, hand the papers to the Senate Executive Clerk and head back to the White House.
And so will begin the "advice and consent" process, a ritual repeated every year by the White House and the Senate since 1789. But these judicial appointments are different they traversed this venerable road in the last Congress. These are the federal judicial selections President Bush previously nominated including Charles Pickering and Priscilla Owen on which the full Senate never voted.
A new Republican majority means a second confirmation opportunity for these nominees and another chance for the Senate. This time the Senate should fulfill its "advice and consent" role and ensure the full body votes on each of these nominees.
The Senate's track record on these nominees over the last year and a half was deplorable. Many nominated in May 2001 are still waiting for a hearing. Using a variety of parliamentary tools, the Democrats blocked the full Senate from voting on all these men and women.
Republicans complained bitterly about the lack of progress on these nominees, but failed to dent the public's consciousness until right before the midterm elections. "The whole issue of confirming judges took on broader appeal after Democrats reneged on a commitment to Sen. Strom Thurmond," noted a GOP leadership aide. According to Mr. Thurmond and other GOP staff, Democrats committed to a vote in October, before Congress adjourned, on Dennis Shed, who was the retiring senator's candidate for a U.S. circuit judgeship. Democrats then reversed themselves and blocked a vote. The uproar, including Mr. Thurmond's blistering speech on the Senate floor, received national media attention, igniting an incendiary device among the Republican faithful.
In many key states featuring competitive races, charges that Democrats "rigged" the system and denied the full Senate a vote resonated in the election and contributed to Republican victories.
The Senate ultimately confirmed Mr. Shedd in the post-election lame duck session. But given the electoral potency of the "obstructionist" message, knowledgeable Senate insiders were stunned when reports circulated that the Democrats may continue dilatory tactics in the next Congress. "We heard disturbing reports they wanted to shift venues from stalling nominees in the Judiciary Committee to delaying action on the Senate floor," one GOP Judiciary Committee aide said.
Stalling will not work anymore in the Judiciary Committee. Sen. Orrin Hatch, the incoming chairman, will move the president's nominees with alacrity. Political scientists Roger E. Hartley and Lisa M. Holmes, writing in the summer 2002 Political Science Quarterly, underscore this point with historical evidence. Analyzing the time required to confirm lower court judges between 1969-1998, they demonstrate that the relationship between the Senate Judiciary Chair and the White House is a significant variable contributing to the length of the process. Mr. Hatch's congenial relationship with the White House should help smooth the way for these nominees.
But no longer controlling the gavel in committee, some Democrats now suggest shifting the battle to the Senate floor. Using parliamentary devices, like a filibuster seldom used in the confirmation process and forcing Republicans to garner a "supermajority" of 60 votes to win some of these nomination battles represents a new level of escalation in the confirmation wars.
The Senate first passed a rule to limit debate and bring matters to a final vote in 1917. This process known as cloture was applied to legislation, not nominations, however, until 1968. Since that time, the Senate confirmed nearly 2,000 lower court judges, only facing filibusters on nine nominations. And even in these few cases the delay tactics did not kill the nomination, according to the Congressional Research Service.
Using filibusters to deny floor votes on judges is both highly unusual and risky for the Democrats. The Constitution calls for the Senate to provide "advice and consent" on nominations, not for an individual or small groups to use delaying tactics to block votes. Frustrating the full Senate from exercising its constitutional role created a bumpy electoral road for the Democrats last November. Shifting stall tactics from the Judiciary Committee to the Senate floor is another political dead end.

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