Now that control of the U.S. Senate is clearly in play in the congressional midterm elections next month, it is instructive to contemplate how the federal judiciary will be affected if Democrats gain at least six seats, which would give them majority status in Congress’s upper chamber. For President Bush and anybody else who espouses a traditional conservative judicial philosophy comparable to the views of Supreme Court Chief Justice John Roberts, Democratic majority control of the Senate would be disastrous. The very liberal Sen. Patrick Leahy, Vermont Democrat, would return as chairman of the Senate Judiciary Committee.
Mr. Leahy’s first stint as Judiciary chairman was bad news for believers in a conservative judicial philosophy. In May 2001, the month President Bush announced his first batch of appellate-court nominations, including Mr. Roberts’ nomination to the D.C. Circuit Court of Appeals, Vermont Sen. Jim Jeffords bolted the Republican Party to become an independent. That decision flipped control of the Senate to Democrats and effectively installed Mr. Leahy as Judiciary chairman. For the final 19 months of the 107th Congress, Mr. Leahy denied Mr. Roberts a hearing before his committee. Mr. Leahy’s obstinance was so extraordinary that a bipartisan group of more than 150 members of the D.C. Bar, including the late Lloyd Cutler (who served as White House counsel to both Jimmy Carter and Bill Clinton) and Seth Waxman (who served as Mr. Clinton’s solicitor general), sent a letter to the Judiciary Committee after Mr. Roberts was renominated in January 2003. “[W]e are united in our belief that John Roberts will be an outstanding federal court of appeals judge and should be confirmed,” they wrote.
Mr. Roberts was just the tip of the iceberg. Mr. Leahy denied hearings for another 11 appellate-court nominees. For Miguel Estrada, who would have been the first Hispanic judge on the D.C. appellate court, Mr. Leahy delayed a hearing for 16 months and then refused to permit a committee vote. Under Mr. Leahy’s chairmanship, the Senate returned 15 appellate-court nominees after the 107th Congress adjourned. That was three times the total number of appellate nominees (five) returned after the first two years of the three previous presidents combined: Reagan (one), Bush 41 (one) and Clinton (three). Incidentally, in 1995 the newly installed Republican Senate confirmed the three appellate nominees returned by the 1993-1994 Democratic-controlled Senate.
After Republicans regained control of the Senate in the 2002 elections, Mr. Leahy became the principal architect of the unprecedented systematic filibuster campaign against appellate-court nominees. In the 108th Congress (2003-2004), Democrats successfully filibustered 10 appellate nominees; they prevailed in seven cloture votes against Mr. Estrada alone, and threatened filibusters against more than half a dozen others.
If Mr. Leahy reclaims the Judiciary gavel, it is safe to say that he will do everything possible to effectively strip President Bush of his constitutional power to appoint appellate-court judges, including any nominations to the Supreme Court.
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