- The Washington Times - Thursday, May 9, 2002

Today, on the anniversary of President Bush's first judicial nominations, Senate Democrats are holding a hearing on judicial confirmations. It could be to consider the 73 percent of those initial nominees still waiting for a hearing. It's not. Titled "Ghosts of Nominations Past: Setting the Record Straight," this hearing is to change the subject.
Scheduled deliberately to interfere with today's anniversary event, this hearing will somehow try to justify the Democrats' current confirmation obstruction campaign by saying the Republican Senate treated President Clinton's nominees badly. No, really these grown politicians don't deny the obstruction, but use the excuse parents refuse to accept even from small children: "They did it first."
The American people won't fall for the con. First, Republicans didn't do it first. Judicial confirmation history did not begin in 1995 with the Republican Senate majority. The liberal New York Times reported in October 1988 that "Democrats were determined to bury" President Reagan's nominees before the election because those judicial positions were "too precious to … give up."
Four years later, believing they could capture the White House, Democrats killed even more Republican nominees. The Democrat Senate ignored 54 pending Bush nominees so that the Bush presidency would close with a whopping 97 judicial vacancies. It worked, vacancies swelling to 113 when Mr. Clinton took office. In contrast, the Republican Senate did not address 41 Clinton nominees, many named too late to consider, and the Clinton presidency closed with just 67 judicial vacancies. Mr. Bush faced 82 vacancies when he took office.
Second, Republicans didn't do it as much. In today's hearing, subcommittee chairman Sen. Charles Schumer surely won't mention that since he and his fellow Democrats took over the Senate last year, vacancies have averaged 45 percent higher than when Republicans ran the Senate under Mr. Clinton. This difference is a pattern, not an aberration. Over the last dozen years, judicial vacancies averaged 113 when Democrats ran the Senate and just 71 when Republicans were in charge.
Third, the accusation doesn't make sense. Republican resistance to some Clinton nominees helped create some vacancies but does not even explain, let alone justify, Democrats' refusal to fill those vacancies today. The excuse for higher vacancies in the early 1990s that the first President Bush made few nominations doesn't work, either. The second President Bush has sent the Senate a record number of nominations, including 30 to the U.S. Court of Appeals. While the previous three presidents enjoyed an average 92 percent confirmation rate for their appeals- court nominees in their first two years, Mr. Bush is stalled at a mere 30 percent. Democrats have plenty of nominees to confirm, but they just won't confirm them.
Fourth, Democrats use tactics Republicans never even tried. Democrats, for example, have called interest group witnesses to attack nearly a dozen prominent Republican judicial nominees to all three levels of the judiciary. In contrast, while he was Judiciary Committee chairman, Sen. Orrin Hatch never called interest group witnesses to testify against Clinton nominees.
Those same far-left interest groups are still calling the Democratic shots. The principal string-puller is Ralph Neas, now president of the so-called People for the American Way (PAW). Working with left-wing Harvard law professor Laurence Tribe, Mr. Neas changed the confirmation rules and tactics in the 1980s so the Senate could highjack judicial selection. He perfected the drive-by smear to defeat or damage a series of judicial nominations since then.
Well, he's baaaaack. The Neas gang deployed early last year against Attorney General John Ashcroft and Solicitor General Ted Olson. Mr. Tribe joined Senate Democrats at their April 2001 planning retreat for a refresher course on the partisan attack confirmation ground rules. Mr. Neas' Senate Democrats then savaged and rejected the appeals-court nomination of Charles Pickering and are now gunning for more.
Mr. Neas is the real ghost of nominations past and present. The question is whether he will haunt nominations future. He and his far-left troops are fighting for a judiciary that will impose his political agenda rather than follow the law. Mr. Neas' agenda which "we the people" reject in the political process opposes such things as parental involvement in their children's health-care decisions, as well as limitations on child pornography, drug use, flag burning and publicly funded indecent and religiously bigoted "art."
The Neas-directed stall has blocked even black appeals- court nominees such as Lavenski Smith. A former Arkansas Supreme Court justice, law professor and legal services attorney, Justice Smith is supported by both home-state senators, Republican Tim Hutchinson and Democrat Blanche Lincoln. He is supported by Dale Charles, president of the Arkansas NAACP, and Arkansas Governor Mike Huckabee. He has been waiting without a hearing for 357 days.
Senate Democrats should hold judicial confirmation hearings, but on nominees rather than on changing the rules and stacking the political deck against them. And they should not let Ralph Neas be the ghost of nominations future; that ghost would be frightening indeed.

Thomas L. Jipping is a senior fellow in legal studies at Concerned Women for America, the nation's largest public policy women's organization.


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