- The Washington Times - Thursday, June 20, 2002

Time is running out for the Senate to live up to its claims of fairness in considering President Bush's judicial nominees.

Over the last dozen years, the Senate has annually been in session an average of 152 days. Observing day-long holidays with week-long breaks, taking the month of August off and quitting early to campaign for re-election leaves only about 50 legislative days this year.

While its legislative agenda varies, the Senate always has judicial nominees waiting for hearings or confirmation. You'd think that a vacancy rate Chief Justice William Rehnquist calls "alarming" would put some pressure on the Senate to act on the 45 pending nominees. Yet vacancies remain higher than on Inauguration Day.

Either the president is not making nominations to fill the vacancies, or the Senate is simply refusing to approve them. That's an easy choice, because Mr. Bush started nominating months earlier than past new presidents and has sent a record number to the Senate.

Last year, Senate Democrats said their confirmation performance should be measured by confirmation of President Clinton's nominees. They proudly claimed they out-confirmed Mr. Clinton's first year, 28-27. But liars figure and figures lie. Confirmation rates, rather than confirmation totals, are the most important measure because the question is not how many nominees the Senate confirmed, but how many the Senate could have confirmed. Mr. Clinton's 48 nominations turn his total of 27 into a rate of 56 percent. Mr. Bush's 65 nominations turn his total of 28 into a rate of 43 percent. A claim of more becomes a fact of less.

Senate Democrats won't even be talking about confirmation totals anymore. During the first two years of the Clinton administration, the Senate confirmed 128 judges. So far, during the first two years of the Bush administration, the Senate has confirmed just 57 judges. Using the correct standard, the previous three presidents enjoyed an average confirmation rate of 94 percent during their first two years in office. Mr. Bush's confirmation rate so far stands at 55 percent.

The picture gets even bleaker looking specifically at nominations to the U.S. Court of Appeals. During his first year in office, Mr. Bush made 32 percent more appeals court nominations than his three predecessors' average, yet his confirmation rate was more than 70 percent less. And this disparity continues into his second year, with just three appeals court nominees confirmed all year and none in two months.

Mr. Bush's nominations leave just one explanation for so few confirmations. Senate Democrats simply won't hold hearings or votes on nominees. Mr. Bush sent 11 nominees to the Senate on May 9, 2001. Sen. Patrick Leahy, Judiciary Committee chairman, has granted only three of them a hearing. Two of these had previously been nominated or appointed to a judicial post by Mr. Clinton and the other came from a state with two Democrat senators. He has blocked the nominees initiated by Mr. Bush and from states with Republican senators.

The previous three presidents saw their first 11 appeals court nominees confirmed in an average of 81 days, and none took more than 202 days. Today, after more than twice that length of time, eight of those first 11 nominees languish with no hearing, despite receiving high ratings from the liberal American Bar Association.

In October 1998, Mr. Leahy said that 48 vacancies were a "crisis." He rejected Republican excuses and scoffed at claims that they were doing the best they could. Yet with vacancies nearly double that level today, he refuses to lift the blockade. Senate Republicans must do more to tell the American people the truth about this hostage situation. Judiciary Committee members and senators from states with vacancies have been largely silent as the obstruction continues. And they must not wait for the November election returns to begin.

In 1994, Senate Democrats confirmed, in just the three months before the election, as many nominees as they have confirmed since Mr. Bush took office. They can do it if they want to.


Thomas L. Jipping is a senior fellow in legal studies at Concerned Women for America.


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