With civil rights, reproductive rights, environmental protections, workers' rights, and yes, even the presidency (see Bush v. Gore) at stake, it's no surprise that the Senate Committee on the Judiciary is a hot spot for politics -- not the handshaking politics of the campaign trail but a passionate, big-picture politics where senators duke it out over the ideological balance of our nation's courts. The committee, which vets the president's nominees for the federal bench, has surely seen excitement over the years, but it was always still the Senate -- navy suits, cordial smiles, professional conduct.
Not anymore. In their latest pursuits to pack the courts, Republicans have bent, twisted, and broken the rules, spawning unmatched acrimony, a criminal investigation, and some really angry Democrats.
According to George W. Bush, we have only the Democrats' "unprecedented obstructionist tactics" to blame. But how obstructed can the process be when committee Republicans outnumber Democrats 10 to 9 and a majority vote sends a nominee to the Senate floor? Moreover, the Senate has already confirmed 171 Bush-backed judges, including 71 since January 2003 -- more than any year between 1995 and 2000 of Bill Clinton's presidency and almost double the yearly average during those years.
How are they managing it, despite the president's controversial nominees, a slim Senate majority, and Democratic protests? Lift the hood and you'll see that the Senate Judiciary Committee is not so much a well-run machine as a well-rigged one, built by the White House to generate a steady stream of federal judges, as Bush promised, in the mold of Antonin Scalia and Clarence Thomas.
The Judiciary Committee has "always been a cockpit of really bitter social battles," says Herman Schwartz, American University law professor and author of the forthcoming Right Wing Justice: The Conservative Campaign to Take Over the Courts. But when Schwartz worked as chief counsel to Democrats on the Senate's antitrust subcommittee, he witnessed a collegiality that has since disappeared. "The [committee] debates were sharp but they were witty. ... The quips, the sharp digs, usually quite good humored, were always there. ... It was very different." So were the committee rules. During the six Clinton years that Republicans controlled Congress, Judiciary Committee Chairman Orrin Hatch faithfully administered the "blue-slip" policy, which allowed home-state senators to effectively veto nominees by not returning their evaluation forms to the committee. In 1998, the slips carried language stating that "[n]o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee's home state senators."
Today Hatch still reigns, but the blue-slip policy doesn't: The Utah Republican announced early in 2003 that the slips were merely advisory, claiming that that had always been the case. "He'll come up with these really contorted reasons for why [a nominee] is moving over the objection of their home-state senators," says Marcia Kuntz, director of the Judicial Selection Project at the Alliance for Justice, an association of advocacy groups. In the case of Henry Saad, Bush's 6th Circuit nominee with Federalist Society credentials and a distaste for workers' rights, Hatch argued that even though Michigan's two Democratic senators hadn't returned blue slips, Saad would have a hearing because the senators received "White House consultation." As Kuntz explains, "Consultation from the White House consists of simply telling you that 'this is what we're going to do.'"
Republican rule bending reached new heights in February 2003 when committee Democrats, feeling that they had not had sufficient time to consider two nominees at hand, refused to participate in a rushed vote, invoking Rule IV, which says that at least one member of the minority must agree to end discussion. "[Y]ou have no right to continue a filibuster in this committee," Hatch told Democrats, and unilaterally forced the vote.
Hatch played fast and loose with the rules again last July, that time to speed along Alabama Attorney General William Pryor Jr.'s nomination to the 11th U.S. Circuit Court of Appeals, disregarding a pending investigation into concerns that Pryor had solicited contributions from state businesses for the Republican Attorneys General Association. Pryor's nomination ultimately met a filibuster on the Senate floor, in no small part because, as a Washington Post editorial put it, Pryor "is a parody of what Democrats imagine Mr. Bush to be plotting for the federal courts."
Not to be deterred, Bush celebrated this year's Martin Luther King Jr. Day recess by invoking his constitutional power to make "recess appointments," putting Charles Pickering Sr. on the 5th Circuit. Pickering, another of 2003's six filibustered nominees, has a civil-rights record that's questionable at best. Then, during the Presidents' Day recess, Bush installed Pryor despite his incomplete investigation and loudly trumpeted views that Roe v. Wade is "the worst abomination" in the history of constitutional law. Both recess appointments will probably last until the end of 2005, when Pickering and Pryor face the confirmation process once more.
Past presidents have made more than 300 recess appointments, but few in recent years. Neither George Bush Senior nor Ronald Reagan made one, and Clinton's sole recess appointment, Roger Gregory, racially integrated the 4th Circuit and filled a seat that had been vacant for almost 11 years. The Senate reconfirmed Gregory in the summer of 2001, with just one dissenting vote (from Trent Lott, who opposed the idea of a "recess appointment").
The extent of Republicans' ruthless tactics on the Judiciary Committee are now coming to light. On March 4, Senate Sergeant at Arms William Pickle concluded a four-month investigation and released a 65-page report confirming that at least two GOP Judiciary Committee staffers, preying on a security weakness, had accessed and downloaded 4,670 internal Democratic memos from a shared server.
According to the report, nominations clerk Jason Lundell began hacking into Democratic files in the fall of 2001. At the direction of Judiciary counsel Manuel Miranda, who later moved to Senate Majority Leader Bill Frist's office, Lundell continued to survey and steal documents for 18 months. According to the report, Miranda told Lundell that "Senator Hatch wanted the staff to use any means necessary to support President Bush's nominees." Hatch disavows any knowledge of the theft. Once stolen, the memos found their way onto the conservative Coalition for a Fair Judiciary's Web site, as well as the November 14, 2003, Wall Street Journal editorial page.
While Hatch called the theft "improper, unethical, and simply unacceptable," we have yet to learn who distributed the memos or to which level they traveled. The White House? The Justice Department? Pending nominees? Pickle had little success chasing those answers. The Wall Street Journal and the Coalition for a Fair Judiciary refused to be interviewed for the investigation, and Miranda wouldn't provide the names of his White House legislative contacts, or his friend who made a backup disk of the Democratic files.
Democrats want answers -- and a criminal investigation. As ranking member Patrick Leahy of Vermont explained to the committee, "Someone who is removed from politics is essential." On March 12, six committee Democrats and Republicans sent a letter to the Justice Department requesting the appointment of a professional prosecutor "or, if appropriate, a special counsel -- who ... will not be removable from this assignment except in case of extraordinary improprieties." If one is appointed, his or her discoveries could certainly intensify tensions on the committee. "What we're talking about," warns American University's Schwartz about the committee's functioning, "is a rubber band that's being stretched very far, and the question is when will that rubber band break."
If you talk to some Democrats, it's already broken. And the committee is not likely to be functioning well anytime soon. Bush's 2004 strategy, sure to include pushing right-wing jurists any way he can, will certainly add more rancor to the mix.