President Bush, the Senate and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution

Senate Action on Bush Nominees

As of October 11, less than six months after President Bush began forwarding nominations to the Senate, hearings had been held on 14 Bush judicial nominees and eight had been confirmed. Even before Senate Republicans began procedural tactics to force additional confirmations, administration officials and right-wing activists had complained that nominees had not been processed quickly enough.

Ashcroft's choice of the ABA convention as the forum in which to call for quick action on the Bush administration's nominees was particularly ironic, since the administration's decision to oust the ABA is directly responsible for slowing down the confirmation process. In the past, the ABA was given the names of potential nominees by the White House prior to their nomination, and investigated them during the same time that FBI and other reviews were taking place. Among other benefits, this process allowed for quiet withdrawal of nominees if serious problems were uncovered.

By cutting the ABA out of the process before the names of nominees are released, the White House is essentially assuring a delay as the ABA must now conduct its review and compile its ratings after, rather than before, the nominees have been made public. In the case of President Bush's first 11 judicial nominees, for example, their nominations were put forth on May 9th, but the ABA ratings were not completed until the middle of June. As of the end of August, the ABA process was not complete on approximately half of Bush's nominees.

But in spite of the delays caused by the administration itself, it is clear that that the Senate is processing nominations at a pace that is quicker than that of the Republican controlled Senate under President Clinton. During hearings for appellate court nominee Sharon Prost and district court nominee Terry Wooten held during the Senate's August recess, Senate Judiciary Chairman Patrick Leahy pointed out that he had held two recess hearings, which is nearly unprecedented in the history of the Judiciary Committee.

At that hearing, Leahy noted that much of the so-called "delay" could be attributed to GOP jockeying after the shift in Senate power that resulted from James Jeffords' defection from the Republican Party. Democrats did not take over the Senate until June 5th and, as the result of several demands on the part of Senate Republicans, the rules and membership of the Judiciary Committee were not even finalized until July 10th. Furthermore, prior to the August recess, Senate Republicans refused to waive a rule requiring that all pending nominations upon which action had not been taken be returned to the White House, serving only to further delay the consideration of nominations.

Nevertheless, as Senator Leahy pointed out, the committee had already, in August, held four judicial confirmation hearings since July 11, a pace far ahead of that set by the Republican-controlled Senate during the Clinton Administration. In early October, the committee held its sixth hearing, even though in 1989 and 1993, similar first years of new administrations, the committee didn't hold its fifth hearing until November. On October 11, the Senate confirmed its fourth court of appeals judge since July, more than were confirmed in the entire first year of the Clinton administration. In addition, said Senator Leahy on October 11, "In the entire first year of the first Bush administration, 1989, without all the disruptions, distractions and shifts of Senate majority that we have experienced this year through July and without the terrorist attacks of September 11, the fourth Court of Appeals nominee was not confirmed until November 8....Thus, in spite of everything, we are more than one month ahead of the pace in 1989." Senator Leahy also noted that in 1996, the Republican-controlled Senate did not confirm a single appeals court nominee.

Despite these efforts, Republican senators have continued to complain, refusing to agree to vote on important appropriations bills needed to run the government at this crucial time unless the pace is stepped up even further. Some civil rights advocates have already expressed concern that under Republican pressure, hearings and votes have been scheduled on controversial nominees without thorough review of their records.

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