It was, on the whole, an unusual display of Democratic solidarity. On April 27, all nine Democrats on the Senate Judiciary Committee -- backed, according to ranking member Patrick Leahy, by the entire Democratic caucus -- signed a letter to White House counsel Alberto Gonzales about George W. Bush's proposed nominations to the federal bench. "We are not going to be rolled over," promised New York's Charles Schumer, who called the letter a "shot across the bow." The confirmation process, warned Leahy, "may grind to a screeching halt."
But not because Gonzales and Judiciary Committee Chairman Orrin Hatch were planning to fill several dozen of the nearly 100 vacancies on the federal bench with staunch conservatives. No, the offense at hand was far more grave: At a confirmation hearing in early April, Hatch had hinted that he might change an obscure policy called the "blue slip," which senators have traditionally used to exercise near-veto power over judicial nominees. During the Clinton years, any one senator could block any candidate from his or her home state (by refusing to return a memo of approval printed, literally, on a blue slip of paper); under George W. Bush, Hatch informed the Democrats, a veto would require the opposition of both home-state senators -- a substantial dilution of a treasured prerogative of office.
He might as well have declared war. When NPR reporter Nina Totenberg confronted Leahy (who had been absent from the hearing) with Hatch's statement, Leahy reportedly swore, informed Totenberg that "we'll follow the rule the same way Senator Hatch followed it for the last six years," and stalked off to find his Republican colleague. During two closed-door meetings that followed, the committee's Democrats threatened to filibuster all of Bush's nominees if Hatch denied them blue-slip privileges. By the time the Democratic caucus convened in Pennsylvania for a retreat just a few days later, blue slips had reached the top of the Democratic agenda. "Interest runs deep among Democratic senators on this issue," one Democratic aide notes wryly. "The session they had on this issue at the retreat was the only one that ran long."
How did the Democrats get religion? Unlike their Republican counterparts, after all, they've never much enjoyed mounting ideological campaigns against nominees. (The nomination of John Ashcroft is a case in point -- not only because it took a massive lobbying effort by liberal interest groups to get the Democrats to put up a real fight, but also because, in the end, Ashcroft won.) Indeed, while Ronald Reagan and George H.W. Bush made it a priority to pack the federal judiciary with conservatives, Bill Clinton -- ignoring the pleas of colleagues who hoped he would try to bring some symmetry to the bench -- explicitly declined to do the same with liberals: According to a much-cited 1996 empirical study, his nominees tended to be slightly less liberal than those of Gerald Ford.
Even when the Republicans took control of the Senate in 1994 and, shortly thereafter, declared war on Clinton's nonexistent "liberal judicial activists," the Democrats never organized a concerted response. Stymied by the Republicans' unusually ruthless use of secret "holds" -- refusals to schedule hearings or votes -- and blue slips, Clinton and the Senate Democrats actually went out of their way to accommodate the Republicans, seeking out corporate lawyers and former prosecutors to nominate. When the Democrats sought black, Hispanic, or female nominees, they favored centrists with law-enforcement endorsements and satisfactorily pro-death-penalty views. In some cases, the White House would simply pick the least offensive conservative from a list assembled by Republicans.
But appeasement failed, too. Even as deaths and retirement expanded the number of vacancies -- from a dozen or so near the end of 1994 to 73 by 1998 -- the average number of days it took for the Senate to act on nominees increased, from 159 days during the 104th Congress to 280 days during the 106th. And Republican objections, meanwhile, became increasingly absurd. Last year, for instance, Republicans blocked the nomination of Richmond lawyer Roger Gregory to the Fourth Circuit because, according to Hatch, "Clinton did not consult with senators from the states where the judgeships are located" -- when, in fact, both of Virginia's senators at the time (Democrat Chuck Robb and Republican John Warner) supported Gregory's confirmation. And back in 1997, Senator Phil Gramm first supported and then opposed fellow Texan Michael D. Schattman because, according to a spokesman, Schattman had registered as a conscientious objector during the Vietnam War, and "we question his ability to fairly consider cases brought before him involving the defense industry." (Gramm, of course, famously managed to avoid being drafted himself.)
"It's irresponsible," Leahy complained of the blocked nominations to The Washington Post. "If you don't like a president's nominee, then vote against him."
But now it looks as though the sheer unreasonableness of the Republican slowdown campaign against Clinton's nominees may prove to be the downfall of Bush's picks for the federal bench. Liberal stalwarts like Schumer and Ted Kennedy are more than happy to oppose conservative nominees on purely ideological grounds. But what's motivating Democratic centrists -- whose votes in the Senate have opened up a whole range of tricks for blocking nominees -- is the Republicans' abuse of the process. Whereas a fair number of middle-of-the-road Democrats are willing to work with Bush on, say, tax cuts, not one (so far) is willing to budge on blue slips -- precisely because they all view the issue primarily as one of privilege, not politics.
Bush "is entitled to appoint people, whatever their ideological bent," says John Edwards, a moderate Democratic senator from North Carolina. But "this process stuff, while on the surface it sounds boring and unimportant, is actually having a real and substantive effect." Like any number of Democratic senators -- Nevada's Harry Reid, Michigan's Carl Levin, Iowa's Tom Harkin -- Edwards has tried repeatedly to nominate moderate judges from his home state, only to be blocked at every turn by Republicans in
the Senate. And the blue slips, says Edwards, are the last straw.
"I think there's a strong feeling in the caucus that we're not going to allow this to happen," he says. "I gave a very passionate speech about it in the caucus on Tuesday; others feel similarly, and I think it's an issue on which I'd expect us to stay completely united." Finally.
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