Report Documents Unprecedented Situation With Federal Judiciary, Calls For Unprecedented Bipartisan Solution

PFAWF’s Neas calls on President Bush to reject right-wing push for ideological domination of the federal judiciary, urges Senate to resist politics of intimidation and fulfill its constitutional role

People For the American Way Foundation President Ralph G. Neas called on President Bush and members of the U.S. Senate to engage in an unprecedented bipartisan approach to judicial nominations in order to minimize the number of divisive nomination battles and to prevent a complete takeover of the federal judiciary by right-wing ideologues. In a report released today, he also urged Senators to resist right-wing pressure to confirm nominees without sufficient opportunity to consider their qualifications and judicial philosophy.

“President Bush and members of the U.S. Senate must recognize that we face an unprecedented situation in the federal judiciary,” said People For the American Way Foundation President Ralph G. Neas, “one that calls for an unprecedented bipartisan solution.”

The PFAWF report debunks accusations that Bush administration’s nominees are being treated unfairly by the Senate, and documents the unprecedented blockade waged by some Senate Republicans, many of whom now clamor for immediate votes on Bush administration judicial nominees, against highly qualified Clinton administration nominees, especially to the critical federal appeals courts. That campaign set the stage for all thirteen of the federal appeals courts to be dominated by judges appointed by a single political party by the end of the Bush administration, an unprecedented situation. If President Bush follows the urging of right-wing advocates to appoint only far-right ideologues to those positions, the impact on Americans’ rights and freedoms could be devastating for decades.

People For the American Way Foundation researchers reviewed Congressional Research Service statistics, comparing the Senate record on judicial nominations during 1995-2000, when Republicans controlled the Senate and President Clinton submitted nominees, and 1987-1992, when Republican presidents submitted nominees to a Democratic-majority Senate. The results are stark and clear:

During the years Republicans controlled the Senate, 45.3 percent of President Clinton’s nominations to the courts of appeals were returned to the White House, a rate 72 percent higher than the 26.3 percent return rate for Presidents Reagan and Bush when Democrats controlled the Senate. (None of the returned Clinton appellate court nominees were voted down – not a single one of them was allowed to come up for a vote.)

During the final two years of Clinton’s term, the blockade was even tighter, with less than half of Clinton’s appeals courts nominees being confirmed. More specifically, during the 106th Congress, 56 percent of President Clinton’s nominations to the courts of appeals were blocked. This failure rate for President Clinton’s appeals court nominees was 60 percent higher than for Presidents Reagan or George H.W. Bush, each of whom saw only 35 percent of his appeals court nominees go unconfirmed in the 101st and 102nd Congresses, respectively.
If numbers are calculated so as to eliminate the effect of multiple nominations of individual nominees, serious discrepancies remain. Under this analysis, appeals court nominees were blocked during the six years Republicans controlled the Senate under President Clinton at a rate nearly 40 percent higher than during the six years Democrats controlled the Senate under Presidents Reagan and Bush – 35 percent under Clinton vs. 25 percent under Reagan and Bush. See the full report for a further note on methodology.

Neas noted that Senate Minority Leader Trent Lott recently threatened to hold up the appropriations process if Bush judicial nominees were not given swift consideration, and yesterday Senate Republicans blocked action on a foreign aid bill. Neas said such calls for action by Lott and other right-wing leaders, including Attorney General John Ashcroft, showed “remarkable chutzpah, if not outright hypocrisy,” given their involvement in the stalling campaign against Clinton administration nominees.

Neas also noted that, in the face of pressure from Lott and others, one judicial nominee was recently approved by the Senate Judiciary Committee in closed session and by the full Senate despite pending concerns about his record, and a controversial nominee was scheduled for a hearing with five working days’ notice, making it impossible for senators to conduct a thorough review of his record. Neas called such actions “unfortunate and unacceptable.”

The report calls on both President Bush and the Senate to act in accordance with their constitutional roles and with recognition of the unprecedented situation facing the federal judiciary. Among the report’s recommendations:

President Bush should work closely with Senate Democrats in an attempt to repair the damage done by six years of Republican obstruction, restore the pre-nomination role of the ABA, and seek out nominees who are not right-wing ideologues and who demonstrate an understanding of and commitment to civil and constitutional rights.

Senate Judiciary Committee Chairman Patrick Leahy should move judicial nominations only when the committee has had time to give them sufficient consideration.

The Senate should carefully and thoroughly review the President’s nominees, particularly for the courts of appeals and the Supreme Court. They should hold out a clear standard of commitment to civil and constitutional rights, as more than 200 law professors have recently suggested. Mainstream nominees that reflect genuine bipartisan consideration should receive priority in processing.

The Senate should not hesitate to fulfill its constitutional responsibility of rejecting and withholding its consent from nominees who do not demonstrate qualifications that include a firm commitment to broad principles of equality and individual rights and an abiding respect for the Constitution and for the constitutional authority of the Congress.

Download a full copy of the report, President Bush, the Senate, and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution.

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