In his remarks on March 14, Senator Hatch seemed to suggest that the Senate should not even consider the judicial philosophy or "ideology" of nominees. Yet Senator Hatch himself, in a 1997 speech to the Federalist Society, stated that the Senate should "ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists." And Senator Hatch chaired the Judiciary Committee from 1995 to 2000, when 35 percent of President Clinton's appellate court nominees were blocked without a single Senate vote. That unprecedented ideological blockade by right-wing senators perpetuated many appeals court vacancies and set the stage for all 13 of the circuit courts to be controlled by Republican-appointed judges by the end of this presidential term.
On March 14, 2002, several Democratic senators explained the importance of judicial philosophy in considering nominations. A letter sent to the Senate Judiciary Committee in July 2001 by more than 200 law professors stated that because federal appellate judges are appointed for life and because their rulings significantly affect the rights of all Americans, nominees must demonstrate an "exemplary record in the law," an "open mind to decision-making," a "commitment to protecting the rights of ordinary Americans," and a "record of commitment to the progress made on civil rights, women's rights and individual liberties."6
We are facing an unprecedented situation that calls for an unprecedented bipartisan solution. President Bush must recognize that the "advise and consent" role of the Senate is a constitutional responsibility. He must engage in genuine dialogue with senators from both parties in order to bring forward more moderate judges who can receive genuine bipartisan support, and the Senate should continue to give priority to processing those nominations. It is appropriate and indeed essential that the Senate reject for important positions on the appellate courts nominees who have not demonstrated a commitment to protecting constitutional and civil rights.