All of which follows a well-conceived plan of showing the White House some muscle. As outlined by TAP's Alexander Wohl last spring, the Democratic judicial strategy calls for both stalling and killing, but only so as to arrive at "a more important...third approach, which is to avoid nasty committee fights and influence the White House not to nominate right-wingers in the first place." But is the White House really going to play along?
There are good reasons for doubting this. For one, the huge imbroglio among liberals over Judge Pickering demonstrated the true calculus of the nomination battles: The "killers" expend a lot more political capital than nominee supporters do. The main shot fired against Pickering was based on civil rights, and shrapnel tore through the liberal activist community, sparking high-pitched debates between those who thought Pickering should be allowed to move past his youthful record and those who insisted it remained relevant. Conservatives happily jumped in to characterize the whole affair as a breakdown of anti-discrimination liberalism.
Still, at least Democrats had plenty to work with on Pickering. That's true of a few other activist nominees as well: Jeffrey Sutton, nominated for the 6th Circuit; and Miguel Estrada and John Roberts, Bush's nominees for the sensitive, policy-oriented DC Circuit. Yet that still leaves 20 or more circuit nominees, many of whom do not have particularly controversial records, but simply are very conservative. How many times can the Democrats go through the Pickering process, each time sending a different part of the liberal base into moral contortions and testing the patience of the public?
It doesn't help that Democrats already are on the defensive. Back when Clinton was lining up nominees, Democrats excoriated Senate Republicans for stalling in the face of a "judicial emergency," as Tom Daschle put it. As a result, key editorial voices, such as the Washington Post, have been boxed in by their previous attacks on congressional stalling and have been cold to the Democrats' new mission, despite its larger principles. The Dems can't even count on unswerving support from the American Bar Association, which has to make "putting butts in seats" its top priority.
Leahy and Daschle survived the fall by in fact confirming a lot of judges. As they love pointing out, Bush got just as many judicial confirmations in the last six months of 2001 as Clinton got in his whole first year. Democrats did this in part by cherry-picking the least controversial nominees, and in part by completely avoiding the real fight: the circuit courts, which are far more involved in interpreting and applying Supreme Court doctrine than district courts. Currently, seven of the 13 circuits are dominated by conservative appointees, but current vacancies, when filled, could mean a conservatives tilt to four more. The Judiciary Committee has confirmed 39 judges since Jim Jeffords' defection handed it over to Democrats -- but only six circuit judges. The pool of nominees now "undergoing consideration" stands at 30 district court nominees and 22 circuit court nominees. Clearly the real battle has barely begun.
The right has the upper hand in this fight because Republicans typically have less of a problem with judicial vacancies than liberals do. Jesse Helms famously declared during his battle to keep Clinton nominees off the 4th Circuit that he didn't even want another judge (he said it would make the existing ones "less efficient"). Fewer judges mean fewer appeals accepted on discriminations laws, workplace-safety regulations, environmental violations, and civil rights cases -- matters conservatives would prefer never came before the court in the first place.
Democrats didn't create the vacancy problem, but it's theirs now, and they need to accept the fact and find a way to deal with it. The pressure is only getting worse. Judges retire in droves annually. Even with 39 confirmations in the last seven months, the total number of vacant seats has gone up. Simply confirming new judges at the replacement rate leaves 100 open judgeships. If Democrats keep up with their principled stalling, the number could rise to between 150 and 200 quite soon.
All this would be bad enough if there were a long-term strategy on the Democratic side. Instead, there's a palpable lack of one. Spiking a few high-profile judges like Pickering might encourage Bush to put up moderate Supreme Court nominees -- but it does little for the problem of circuit court vacancies.
The closest thing to a long-term Democratic approach was mentioned, briefly, by Judiciary Committee member Dianne Feinstein on Meet the Press late last month:
I think there's another thing. President Bush did not have a large mandate. There is no mandate, in my view, to skew the courts to the right. And so I think you're going to see a Judiciary Committee that's really going to be looking for mainstream judges....This "mandate" argument, if articulated correctly and put front and center, might indeed help justify a sustained campaign of nomination rejections -- at least in the minds of the frustrated Gore majority. Democrats might even raise their bargaining position by demanding at the outset that a certain percentage of future judicial nominees be politically independent or Democrats.
But shifting the onus of compromise on the federal judiciary to the White House will require a lot more than a few displays of Judiciary Committee tail feathers. The last time the far-right trusted a Bush on judicial nominations they got David Souter and Anthony Kennedy. This time around they're far more likely to demand a hard line. Senate Democrats need to craft a realistic long-term plan to save the federal judiciary and put it before the public as soon as possible.
