- The Washington Times - Monday, May 6, 2002

On May 9, 2001, Senate Judiciary Committee Chairman Patrick Leahy watched in the White House East Room as President Bush announced his first 11 nominees to the federal judiciary. Seven were sitting judges either on the federal bench or on state supreme courts four had clerked for members of the U.S. Supreme Court, four were among the country's leading Supreme Court practitioners and four had argued cases before the Supreme Court, totaling almost 70 in all. Even more remarkable was the fact that one was an unconfirmed Clinton circuit court nominee whose re-nomination by a president of another party was virtually unprecedented.
A reasonable observer would expect that a first group of nominees with those credentials would have been confirmed long ago. Only three of them have been. The former Clinton nominee sailed through the Senate a couple of months after his nomination. Another Clinton appointee elevated by Mr. Bush received a Senate vote in the fall. And one Fifth Circuit nominee was confirmed in November, so that when Democrats went after Charles Pickering they could claim they had at least confirmed someone to that court.
The others ran into an insurmountable obstacle Mr. Leahy himself and for nearly a year, their nominations have remained in limbo. No hearings, no votes. Nothing.
In public statements over the past few years, Mr. Leahy has set forth a standard of fairness for dealing with nominations, and throughout his tenure as Judiciary's chairman, he has insisted that his handling of Mr. Bush's nominations has been fair and equitable. But when the Leahy Standard is compared to his record on these eight nominees, his actions fall short of the mark that he himself set.
Several times during 2000, Mr. Leahy supported then-Gov. Bush's call for the Senate to act quickly on nominations. In October, he said: "I have said on the floor, although we are of different parties, I have agreed with Gov. George Bush, who has said that in the Senate a nominee ought to get a vote, up or down, within 60 days." Though he said that fair treatment requires timely action, these nominees have waited 362 days for a hearing and a vote. And while he may have thought that someone else would be appointing judges by this time, his support for Mr. Bush's call was unequivocal.
When Mr. Bush announced these nominations, Mr. Leahy praised his choices, saying: "Had I not been encouraged, I would not have been here today. I will continue to work with the president." For most people, blocking them from receiving a hearing and a vote is anything but working with the president, especially after Mr. Bush met Democrats halfway by not nominating several candidates Democrats disapproved of and re-submitting a Clinton nominee. Regardless, Mr. Leahy made a commitment on May 9 to work with the president after he made these nominations, a commitment he has yet to fulfill.
When there were 50 vacancies on the federal bench, Mr. Leahy spoke of "a judicial vacancy crisis." In his words, those who delay or prevent the filling of vacancies must understand that they are delaying or preventing the administration of justice. Addressing the vacancy crisis is a matter of fairness to litigants all over the nation, but especially to those with cases before shorthanded courts dealing with their own vacancy problems. Consider the Sixth Circuit Court, with eight of 16 seats vacant and two nominees among those waiting. Or the D.C. Circuit Court, with four of 12 seats vacant and two nominees for that court also waiting since May.
There are 87 empty judgeships today, well beyond what Mr. Leahy called a state of crisis. The number of vacancies has remained at 100 or higher during seven of the 10 months that he has chaired the Judiciary Committee. When the number of vacancies dropped below 90 two weeks ago, it was the first time that happened since Mr. Leahy took over. If he were serious about addressing the vacancy crisis, he would not be stalling these circuit court nominations, half of which have been officially designated judicial emergencies. Instead, he would give them a hearing and a shot at confirmation.
Under the Leahy Standard, fairness to nominees means allowing them a Senate vote within 60 days, not 362 days. Fairness to the president means being willing to work with him on these nominations, not committing to do so and then doing next to nothing. Fairness to the judiciary and the parties who come before it means earnestly working to resolve the vacancy crisis, not leaving circuit court judgeships vacant when qualified nominees are there to fill them. Mr. Leahy's standard of fairness is one thing. His treatment of these eight nominees is another.
After nearly a year, these men and women deserve a hearing before the Judiciary Committee and an up or down vote before the Senate. Mr. Leahy should lift his blockade and allow them the opportunity to be confirmed. By his own standard, it is the right thing to do.

John Nowacki is director of Legal Policy at the Free Congress Foundation.


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