- The Washington Times - Monday, January 14, 2002

Unprecedented partisanship drove the Senate's judicial confirmation process last year. Things can go better this year if only Democrats would follow their own standards.

A composite of the last three presidents' first year looks like this: nominations begin in July or August and the Senate confirms about 72 percent, in the first year. Instead, President Bush's first year looked like this: though nominations began in early May, and he made 67 percent more nominations than his predecessors' average, the Senate confirmed just 42 percent in the first year. Despite receiving 53 nominations before September 11, the Senate did not even keep up with judicial attrition; vacancies jumped from 82 on inauguration day to 94 by adjournment day. Eight of the first 11 nominees, named on May 9, have to this day not even received a Judiciary Committee hearing. Deliberate partisanship is the only explanation for this performance.

Things need not be this way this year. First, Democrats say the benchmark should be their confirmation performance when running the Senate during President Clinton's first term. In 1994, Mr. Clinton's second year, the Senate Judiciary Committee held 25 confirmation hearings and the Senate confirmed 101 judicial nominees. The pace was so fast, confirmations topped the annual average from the Reagan-Bush years before the August recess. In just the three months leading up to the fall elections, the Senate approved 54 judges; October's tally of 28 is still a single-month record and equaled the previous year's total.

Democrats insisted 1994 was the benchmark long after Republicans captured the Senate. On March 16, 1998, Sen. Patrick Leahy said: "Unfortunately, over the last three years, the Senate has barely matched the one-year total of judges confirmed in 1994." On July 7, 1998, he compared that year's confirmation progress "to our total of judges confirmed in 1994." On April 14, 1999, Mr. Leahy said: "Look at how we have done in the past. Let's go a little backward. In 1994, we confirmed 101." On both Nov. 19, 1999, and Feb. 10, 2000, he used the same language: "In 1994, with a Democratic majority in the Senate, we confirmed 101 judges."

Second, Democrats have demanded that the Senate vote on nominations soon after the president makes them. On July 25, 2000, Sen. Leahy said: "The soon-to-be presidential nominee of the Republican Party has said and I agree with him that the Senate ought to vote these people up or down in 60 days One of the things that most Republicans and Democrats ought to be able to agree on is what Governor Bush said: Do it and vote them up or down in 60 days."

Gov. Bush, of course, is now President Bush. Democrats will say this 60-day standard assumed the liberal American Bar Association would evaluate and rate candidates prior to nomination. Since they now do so after nomination, toss in another 30 days longer than the three weeks the ABA said last year its work should take. The Senate adjourned last year abandoning at least two dozen nominees already past this 90-day limit.

Third, Democrats have demanded that all nominees be confirmed before finally adjourning a two-year Congressional session. Mr. Leahy reminded the majority Republicans of this on Oct. 14, 1998, shortly before the 105th Congress adjourned: "The Democratic Senate majority in the two Congresses of the Bush Administration ended both those Congresses, the 101st and 102nd, without a single judicial nomination on the calendar." One week later, the Senate confirmed 17 judicial nominees in a single group by unanimous consent minutes before adjournment.

Democrats have often cited Chief Justice William Rehnquist's warnings about slow confirmations and high vacancies. In his 1997 annual report, the chief wrote that "vacancies cannot remain at such high levels indefinitely without eroding the quality of justice." Mr. Clinton himself quoted the Rehnquist report in his 1998 State of the Union Address, as have Senate Democrats dozens of times since.

Chief Justice Rehnquist's new report on 2001 repeats the same warning. He wrote: "When I spoke to this issue in 1997, there were 82 judicial vacancies; when the Senate adjourned on December 20th there were 94 vacancies." The situation is even worse than when Democrat said the Senate should heed such warnings.

On July 17, 1998, Mr. Leahy said that filling judicial vacancies "is a constitutional duty that the Senate and all of its members are obligated to fulfill." Indeed it is. If only Democrats would follow their own standards in fulfilling that constitutional duty, this will be a very busy year.

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

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