Streetcar Line

Judge Knot

Why are judicial nominees still tied up in the Senate?

By 3.28.06

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The utter cluelessness of the Republican majority in the U.S. Senate continues to show itself in the Senate's continuing refusal to move forward with confirmation of federal judges, especially to the circuit courts of appeal.

And what's truly baffling is that the Republicans' failures on judges not only hurt the American polity, but actually hurt their own politics as well -- as we shall see. With senators, unfortunately, principle doesn't always suffice; but when principle and raw politics happen to coincide, it's almost bizarre to see practiced solons fail to take advantage.

But that's what has happened.

It was actually liberal Democratic Sen. Patrick Leahy of Vermont, one of the fiercest participants on the wrong side of the battle over the judiciary, who in a March 14 statement best made the point: "[T]he total number of judicial appointments since January 2001 [is] 232, including the confirmations of two Supreme Court Justices and 43 circuit court judges. Of course, 100 judges were confirmed in the 17 months there was a Democratic majority in the Senate. In the other 45 months, 132 judges have been confirmed. Ironically, under Democratic leadership, the Senate was almost twice as productive as under Republican leadership."

That's a hell of a note.

SEN. LEAHY WAS, OF COURSE, being a bit disingenuous, because most of the nominees approved in the first 17 months were for the less controversial positions on the lower federal courts, not for appellate judges. But the fact remains that the Republican leadership has moved in many ways more slowly in the face of the threat of Democratic filibusters than the Democrats themselves moved when they had the majority power to reject nominees outright in committee. Worse still, the Republican majority has moved more slowly after supposedly "winning" the battle over the constitutional ("nuclear") option against filibusters than it moved before the so-called Gang of 14 agreed that filibusters could be used only "under extraordinary circumstances."

The Gang's agreement expressly provided for cloture for (and, in effect, confirmation of) purportedly controversial appellate nominees Bill Pryor, Janice Rogers Brown, and Priscilla Owen. It also freed up D.C. Circuit Court of Appeals nominee Thomas Griffith, a favorite of powerful GOP Sen. Orrin Hatch of Utah, and two appellate judges from Michigan, Richard Griffin and David McKeague -- neither of whom was controversial in his own right.

Since then, however, the only appeals court judge confirmed was fellow Michigander Susan Nielson, who was in ill health and who died in January, just three months after being seated on the bench.

But a fourth Michigander, state court of appeals Judge Henry Saad, has finally withdrawn in disgust after three years of ill treatment. Meanwhile, Fourth Circuit nominees William Haynes and Terry Boyle remain in limbo after, respectively, more than two years of waiting and a whopping 15 years. (Judge Boyle was first nominated for the Fourth Circuit by the first President Bush, and nominated again by the second Bush way back on May 9, 2001.)

Brett Kavanaugh (of whom, more shortly) has been waiting for nearly two years for the D.C. Circuit. William Myers was first nominated for the Ninth Circuit in May of 2003. In all, 11 nominees await confirmation, and nine other seats are vacant. (And by my count there are 34 lower-court vacancies as well.)

In short, the famous (or infamous) Gang of 14 agreement has left far more appellate slots unfilled, ten months later, than it has helped to fill. And this sorry record comes on top of the failures earlier in the Bush presidency to ward off the character assassinations that badgered nominees Miguel Estrada, Carolyn Kuhl, and Charles Pickering into withdrawals for no good reason.

One would think, with a 55-45 majority and an agreement from seven of the minority Democrats that they would not filibuster except in "extraordinary circumstances" (and with more than 50 Republican committed to clarifying the rules so as to kill judicial filibusters once and for all if the Democrats break this agreement), that Senate Republicans would be more eager to fill the judiciary with people willing and able to push back against leftist jurists -- jurists whose decisions are inimical to the principles and politics of those very same Senate Republicans.

Some may argue that the Senate GOP isn't getting credit here for confirming Supreme Court Justices John Roberts and Samuel Alito. Point granted. But it's irrelevant. Both then-judges had already effectively won the PR war within about three days of being nominated. All the Senate GOP had to do was keep its nerve and fight a pretty simple rearguard action while the nominees themselves did the heavy lifting.

MEANWHILE, IT IS AT THE CIRCUIT appellate level that the greatest number of important cases get decided, without the Supreme Court even deciding to review them. Of those circuit courts, the D.C. bench is of course seen as the most important of all -- and it is there that perhaps the most promising nominee, Brett Kavanaugh, is slated to sit.

At age 41, Kavanaugh already has a resume that many lawyers 15 years his senior would die for. A double-graduate of Yale (B.A. and J.D.), the brilliant and friendly Kavanaugh clerked for not one but two circuit appellate judges and for Supreme Court Justice Anthony Kennedy (when Kennedy still seemed mostly conservative), served as an assistant U.S. solicitor general and as White House associate counsel, in addition to stints at the prestigious Kirkland and Ellis firm and for Independent Counsel Kenneth Starr.

It is that last-mentioned role, of course, that gives Senate Democrats heartburn. But it shouldn't. No less than the iconic Watergate scoopmeister Bob Woodward has written that Kavanaugh was a moderating force in the office, showing wisdom and balance (sometimes in the form of basic tactfulness) that some of his superiors lacked. For instance, he opposed the decisions to include in the main report issued to Congress all the graphic details of the Clinton sexcapades and to release said details in a public document dump. (The explicit nature of the material was blamed on Republican prurience and actually helped turn the American public against impeachment.) And as one of the main authors of the report on Vince Foster's death, Kavanaugh helped clear away some of the most outlandish rumors about that sad event. In short, he was more than fair to the Clintons, and deserves no Democratic calumny for his role.

Moreover, leading conservative legal lights uniformly give Kavanaugh high ratings on matters of principle -- and the American Bar Association judicial panel gave him its highest rating of "well qualified."

In short, Kavanaugh is, like Justices Alito and especially Roberts, a political victory just waiting to happen for Republican senators who would only be helped if the Democrats insist on raising a stink about such an attractive and talented nominee. And if Democrats are stupid enough to filibuster him, a GOP invocation of the constitutional option to kill the judicial filibuster for good, on behalf of a nominee of such star quality, could only redound to the GOP's political benefit.

INDEED, IT IS IN PURELY POLITICAL terms that the Senate Republicans' reluctance to push judicial nominees looks both moronic and bizarre. All the recent political history suggests that when the topic is judges, Republicans win. (Or at least conservatives win: Clearly and sadly, even many self-proclaimed "conservatives" in the Senate GOP caucus are anything but conservative in the principled, philosophical sense at all.) Current GOP senators Saxby Chambliss, Mel Martinez, David Vitter, John Thune, and Jim Talent all won hard-fought races at least in significant part by stressing the issue of judges at campaign appearance after campaign appearance. South Carolinians Jim DeMint and Lindsey Graham, North Carolinian Richard Burr, and Georgian Johnny Isakson also stressed judges while winning more handily.

More than that, it is on the issues surrounding judgeships that conservative positions consistently attract the largest majorities in public polling. While no good conservative judge is "result-oriented," the simple nature of the beast is that a conservative judicial approach will tend to reach popular results -- because it is the arrogant left whose judges try to dictate newfangled social outcomes, without regard to the elective branches of government, that are opposed by a majority of the American public and which are found nowhere in the text and tradition of the Constitution.

For instance, when the issue is the misuse of "eminent domain" to seize private lands for the use of other private entities, conservatives win.

When the issue is governmental hostility towards (rather than mere neutrality about) expressions of faith in the public square, conservatives win.

When the issue is partial birth abortion, conservatives win. When it's forfeiting sovereignty by citing the supposed authority of foreign law, conservatives win. And conservatives win big on the issue of judicially imposed homosexual unions, on the Pledge of Allegiance, and especially on issues of law and order.

A politician doesn't have to delve into abstruse constitutional theory, much less into emanations from penumbras, to make hay of these topics. All of these topic are affected by judicial decisions, and all of them create gut-level responses in conservatives' favor among broad swaths of the American people.

Despite appearances to the contrary, a Senate staffer close to the process told me on Tuesday that at least a fair number of Republican senators understand how important the judicial nominations are, and that -- probably beginning with Judge Boyle, who has waited 15 years for his chance -- the nomination logjam should soon be broken. Specifically about Brett Kavanaugh, this source said that Judiciary Committee Chairman Arlen Specter is understood to be supportive, and that: "I think he's going to move. I think you'll see his nomination start to percolate soon."

And, noted the staffer, "We still have the nuclear option in our back pocket."

Here's hoping the staffer is right. Because it's long past time to test the Gang of 14's deal, and to use the nuke if it's needed.

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About the Author
Quin Hillyer is a senior editor of The American Spectator and a senior fellow at the Center for Individual Freedom. Follow him on Twitter @QuinHillyer.