- The Washington Times - Thursday, May 9, 2002

Congratulations to Senate Judiciary Committee Chairman Patrick Leahy, Democrat from the great state of Vermont, population 608,827, give or take a few registered Holsteins. Today marks the one-year anniversary of the day President Bush sent Congress his first 11 judicial nominees for the U.S. circuit courts of appeal. Despite rocky going in those early weeks, back when it looked as if the nominees might actually be donning their robes with ease (remember that pesky Republican Senate majority?), Mr. Leahy has successfully staunched the flow of judges to the federal bench.

Some of the credit must go to "Independent"-minded Sen. James Jeffords, also from Vermont. It was Mr. Jeffords' almost year-old defection from the GOP that tipped the Senate to the Democrats in the first place, empowering Mr. Leahy as chairman. Thanks to Mr. Leahy, only three of those original nominees have been confirmed and two of them were Democrats the White House was offering as tokens of political peace. The other eight haven't even been scheduled for a hearing.

That should teach the White House a thing or two. Actually, this whole year should have been one long learning curve, culminating in the appalling crack-up in March of Judge Charles W. Pickering's nomination. In the two months since Mr. Pickering's rejection by committee Democrats, Mr. Bush has spoken out about the process more than in the preceding 10 months. Last week, he accused the Senate, through inaction, of "endangering the administration of justice in America. I call on Senate Democrats," he said, "to end the vacancy crisis in our federal courts by restoring fairness to the judicial confirmation process."

This is a good start. But the vacancy crisis is not just a result of dithering. That is, Judiciary Democrats depict their stalling action as an enlightened buffer against the judicial "extremism" and "outside-the-mainstream" instincts of a president who came to office by virtue of the slimmest of margins. Simply calling on Democrats to end their political intransigence, in the name of fairness toward individual nominees or justice for their fellow citizens, will not move them.

Nor will it move voters or, at least, enough voters. And this is key because the only workable solution to the vacancy crisis is a Republican majority in the Senate come November. To this end, what must be restored to the confirmation process is context; namely, a new understanding of the terms of the debate itself.

In this election year, Mr. Bush needs to lead a national discussion that not only highlights the unfairnesses of the confirmation process, but also grapples with the very meaning of "extremism," and explores the whereabouts of the cultural "mainstream." Writing in the Weekly Standard, Noemie Emery lays out a concise strategy to take "a leaf from the interest groups' playbooks, and portray them, accurately, as 'extreme' and 'outside the mainstream.' "

But it's a case that must be made before November if, that is, next year's judicial anniversary is to mark anything worth celebrating.


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