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

The GOP Blockade Against Appeals Court Nominees

Calls by Attorney General Ashcroft, Republican senators, Religious Right groups, and right-wing legal activists for quick action on President Bush's nominees, and their efforts to discourage substantial inquiry by the Senate Judiciary Committee, display remarkable chutzpah, if not outright hypocrisy. Right-wing organizations demanded, and right-wing Senators implemented, a delaying campaign of unprecedented scope against Clinton administration judicial nominees, particularly for the appeals courts.

The slowdown began in 1995 after Republicans took the majority in the Senate. Senate leaders' failure to allow nominees to come up for a vote was so extensive that it drew unusual criticism from Chief Justice William Rehnquist in late 1997. There was a brief period of improvement after Rehnquist's comments, but during the final two years of President Clinton's term, the blockade was even tighter, with less than half of Clinton's appeals courts nominees being confirmed.

Blockade leaders were not shy about their efforts. In 1997, former Senate Judiciary Committee chair Orrin Hatch, who now protests Democratic Senators' suggestions that the judicial ideology and philosophy of nominees be carefully reviewed, emphasized the need for Senators to "ascertain the jurisprudential views a nominee will bring to the bench" through "extensive" questioning and investigation, with "no set time" to complete the process. "No set time" for some nominees meant that they waited years without even being granted a hearing by the Judiciary Committee. Many others were prevented from coming before the Senate.

Then-Senate Majority Leader Trent Lott was quite blunt in 1998. "Should we take our time on these federal judges?" Lott asked rhetorically. "Yes. Do I have any apologies? Only one: I probably moved too many already."

Ashcroft himself routinely blocked nominations, reportedly helping to delay the confirmation of William Fletcher to the 9th Circuit Court of Appeals for over three years and the confirmation of Richard Paez to the same court for more than four years. Among his other targets were the nominations of Margaret Morrow to the federal district court, Margaret McKeown to the Ninth Circuit Court of Appeals, and Sonia Sotomayor for the Second Circuit Court of Appeals.

Although Senators Hatch, Ashcroft and others claimed that they were seeking to avoid liberal "activist" judges nominated by President Clinton, these assertions do not withstand scrutiny. Academic studies and reviews by legal scholars have concluded that Clinton's appointees were exceptionally well-qualified and were generally less liberal than those of other Democratic presidents. In fact, they most closely resembled the judicial appointments made by President Gerald Ford. Nevertheless, even these centrist judges, primarily those nominated to the courts of appeals, ran into the Senate slowdown.

The situation became even worse during 1999 and 2000, as Radical Right groups stepped up their efforts to prevent Clinton nominees from being confirmed for the federal bench. In 1999, Phyllis Schlafly's Eagle Forum began a "Court Alert" campaign that called for conservatives in the Senate to block all of Clinton's judicial nominees. Right-wing groups like the Christian Coalition, Free Congress Foundation, and the Family Research Council joined the effort, sometimes opposing individual nominees and sometimes calling for a halt to confirmations entirely. Ashcroft supported Senator James Inhofe's threats in early 2000 to block all Clinton nominees for the remainder of his term.

They were effective. During the first half of 1999, the Senate Judiciary Committee did not hold a single confirmation hearing. In fact, the number of hearings dropped from 11 in 1998 to seven in 1999 and eight in 2000.

The delays worsened as well. It took only 77 days for an appeals court nominee to receive a hearing during the first Bush Administration, and 81 days during Clinton's first term. That figure ballooned to 231 days during 1997-98 and even further to 247 days during 1999-2000. A number of nominees experienced significant delays and never received a hearing or a vote. For example, no hearing was held on the 1999 nominations of Enrique Moreno to the Fifth Circuit, Elena Kagan to the D.C. Circuit, and James Wynn to the Fourth Circuit. Helene White was originally nominated to the Sixth Circuit in January, 1996, and never even received a hearing despite waiting for four years.

One notable example of the hypocrisy surrounding judicial nominations is the 4th Circuit Court of Appeals, which covers the Carolinas, Maryland, Virginia and West Virginia. Until 2001, the 4th Circuit had never had a non-white judge. Right-wing Senator Jesse Helms had repeatedly used his power to block African American nominees to the court. The 1999 nomination of James A. Wynn, who would have become the first African American judge to serve on the 4th Circuit, was Clinton's second attempt to integrate the court. An earlier African American nominee to the court, James A. Beaty, Jr., was approved by the Senate Judiciary Committee but was blocked from reaching a full Senate vote by Helms. Helms also blocked Wynn's nomination, this time before Wynn even received a hearing from the Judiciary Committee. Two other African American nominees, Roger Gregory and Andre Davis, were nominated to the 4th Circuit in 2000, but neither received a hearing. For years, Helms and Sen. Strom Thurmond routinely blocked Clinton's nominees to the 4th Circuit, repeatedly claiming that the court did not need more judges. Yet, when President George W. Bush took office, both Helms and Thurmond switched their positions, with Helms claiming he was now "look[ing] forward to working with the Bush administration on matters regarding the 4th Circuit," and Thurmond promoting U.S. District Judge Dennis W. Shedd for a position on the court.

Although a number of right-wing Senators and organizations are trying to devise statistics to show that there was no significant slowdown against Clinton nominees, even Bush Administration officials have acknowledged what happened. In August, White House counsel Alberto Gonzalez told CNN that the "conduct of the Republican Senators" in delaying and refusing to vote on Clinton nominees was "improper" and "wrong."

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