Should Bush Shape the Bench?

There are about 93 vacancies in the federal court system today, and next month, George W. Bush is likely to announce his first batch of nominees to fill them. That there are so many vacancies is not, however, a matter of happenstance. For six years, Republicans in the Senate employed every trick in the book -- secret "holds," burying nominees in committee, refusing to hold hearings or schedule votes -- to stall, delay, and obstruct Bill Clinton's appointees to the bench.

That these appointees were "liberal judicial activists," as Republican senators liked to say, was a claim almost no one besides them took seriously -- by 1997, even Chief Justice William Rehnquist, a Republican and conservative, was complaining about the Republican-inspired slowdown. (Indeed, appointing liberals to the bench was never a priority for Clinton, and most of his nominees were plain-vanilla moderates. A 1996 empirical study by three political scientists found that Bill Clinton's nominees tended to be slightly less liberal, on the whole, than Gerald Ford's.) Rather, the Republicans' aim was twofold: first, to overburden federal judges with high caseloads ("Busy judges with less staff have less time to make trouble," I once heard a conservative activist put it), and second, to hold out for a Republican president.

Now they have one. But any day now -- literally, given Strom Thurmond's declining health -- control of the chamber could swing back to the Democrats. So not only are Senate Republicans maneuvering to abolish some of the delaying procedures that they themselves used against Clinton (such as the "blue slip," by which individual senators could exercise near-veto power over nominees from their own states) -- they are also preparing to rush as many Bush appointments through to confirmation as they can before Democrats get the institutional purchase of majority control. And Democrats should be prepared to stop it.

But not because of the peculiar circumstances of Bush's win last November. Rather, case for obstructionism stems from Senate Republicans' gross abuse of their powers to "advise and consent" during the Clinton years, depriving a twice-legitimately-elected president from exercising his constitutional duty to make appointees to the federal bench. True, Clinton was slow about proffering nominees; but the Republicans were even slower about considering them. In 1994, the Senate confirmed 101 judges. But in 1996 and 1997 -- after Republicans took control -- the Senate confirmed 17 and 36 judges, respectively. In the last year of Clinton's presidency, according to a report from the Alliance for Justice, the Senate confirmed only eight of Clinton's 26 appellate nominations and only 39 judges in all -- whereas the Democratic-controlled Senate during George Bush's final year in office confirmed nearly twice that number. Even if they accept the basic legitimacy of Bush's right to make lifetime appointments, the Democrats have every reason to block, delay, and hold up a certain number of Bush's nominees.

How many? By rights, nearly all of the available vacancies could have been filled under Clinton had he been shown the same deference that former Judiciary chairmen Edward Kennedy and Joe Biden showed Reagan and George Bush. As it is, there are only 42 outstanding Clinton nominations. So, to begin with, the Democrats should refuse to consider any Bush nominees until every single one of those 42 have been given a fair hearing and a vote. (Some Democrats are already leading the charge. Senators John Edwards of North Carolina and Carl Levin of Michigan have both threatened to hold up Bush nominees until Clinton nominees from their own states -- James Wynn for the Fourth Circuit Court of Appeals, and Helene White, whose four-year wait for a vote is the current record, for the Sixth Circuit -- get a fair hearing.) These are nearly all experienced, moderate, well-qualified men and women, and there is no reason why nearly all of them shouldn't be confirmed -- starting, immediately, with those nominated for one of the twenty-eight "emergency" vacancies cited by court administrators.

Bush and his colleagues in the Senate may not show the Democrats any good will, of course; certainly the right will be pressuring them not to. If Clinton's nominees are unceremoniously rejected in party-line-plus-Dick Cheney votes and replaced with Bush nominees, the course is clear: Allow the appointment of centrists to emergency vacancies, while keeping the rest bottled up. If Bush does allow the Clinton nominees to be confirmed, the electoral near-parity of the two parties -- rather than the circumstances of the 2000 election -- demands that Democrats hold future Bush nominees to at least the same standards to which Clinton was held: only moderate, centrist, utterly uncontroversial nominees allowed. Put simply, George Bush has no mandate to appoint conservative judges to lifetime posts. As a matter of principle, Democrats shouldn't let him.