In an effort to pack the federal courts with right-wing judges who will turn back the clock on decades of social justice progress in this country, Republican Senate leaders have engaged in an abuse of power and run roughshod over long-standing Senate rules, practices and traditions they had followed during the Clinton Administration and that both parties had followed in prior administrations. Indeed, Senator Patrick Leahy, the Ranking Member of the Judiciary Committee, has repeatedly chronicled and complained about the fact that the Committee under Senator Hatch’s chairmanship has trampled long-standing Committee rules and bipartisan agreements that have governed the Committee’s deliberative process.6 In the words of Senator Leahy, “we have witnessed rule after rule broken or misinterpreted away.”7
For example, with a Republican in the White House, Senator Hatch has now abandoned the Committee’s “blue slip policy” under which consideration of a nomination would not proceed if the nominee were opposed by one or both home-state Senators. Indeed, during the six years of the Clinton Administration when Senator Hatch chaired the Committee, he never allowed a nomination to be considered if either home-state Senator failed to return the blue slip. In fact, in 1998, the blue slip policy followed by Senator Hatch was made explicit on the blue slips themselves, which stated that “[n]o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators.”
Nevertheless, with President Bush in the White House, Senator Hatch has proceeded with a number of controversial nominations, despite the opposition of both home-state Senators, including the nominations of Carolyn Kuhl to the Ninth Circuit and the nominations of Henry Saad, Richard Griffin, and David McKeague to the Sixth Circuit.
Senator Hatch has also cast aside Committee Rule IV, which for decades has protected the minority party by requiring the support of at least one member of that party before debate on any matter, including a judicial nomination, can be ended and a final vote taken in committee. In fact, in 1997, in connection with the consideration of President Clinton’s nomination of Bill Lann Lee to serve as Assistant Attorney General for Civil Rights, Senator Hatch expressly acknowledged that “[a]bsent the consent of a minority member of the Committee, a matter may not be brought to a vote.”8 With President Bush in the White House, however, Senator Hatch has effectively and unilaterally revoked Rule IV, forcing Committee votes on controversial Sixth Circuit nominee Deborah Cook and D.C. Circuit nominee John Roberts over the objections of the Democrats on the Committee.
Those objections to proceeding stemmed from yet another violation by Senator Hatch of long-standing Committee practice, namely, a written bipartisan agreement that had governed Committee practice since the mid-1980s precluding combined hearings for controversial appellate court nominees. Despite that agreement, Senator Hatch had combined the hearings for Cook and Roberts with that of even more controversial Sixth Circuit nominee Jeffrey Sutton, effectively precluding questioning of Cook and Roberts. Senator Hatch then scheduled votes for Cook and Roberts and, despite Committee Rule IV, ignored the Democrats, who did not agree that it was appropriate to hold votes on Cook and Roberts at that time, since they essentially had not been scrutinized by the Committee.9
As Senator Leahy has also chronicled, Republican Senate leaders are pursuing a double standard when it comes to the pace with which they have held hearings for judicial nominees this year, far eclipsing their record during the Clinton Administration when they sought to shut down the nominations process. Thus, for example, as of July 7, 2004, the Judiciary Committee had held three times the number of hearings held by that date in 1996 and twice as many as held by that date in 2000.10
Most recently, Senate Republican leaders have also violated the “Thurmond rule,” a long-standing Senate policy under which controversial nominees are not considered this late in a presidential election year. This and other violations came to a head the week of July 19, 2004 –- the week preceding the Senate’s August recess and the Democratic National Convention -- as Republican Senate leaders forced votes on four highly controversial nominees certain to be filibustered. It is clear this was done in order to inflate the number of filibustered nominees to fuel the Administration’s cries of “obstructionism” heading into the election season.
On Tuesday, July 20, 2004, Republican Senate leaders forced a cloture vote on Ninth Circuit nominee William Myers, a nominee so ideologically extreme that his nomination has generated unprecedented opposition, including from environmental organizations and Native American groups that have never before opposed the confirmation of a federal judicial nominee. The cloture vote failed, as Republicans undoubtedly knew it would.
That same day, Judiciary Chairman Hatch forced Committee votes on Sixth Circuit nominees David McKeague and Richard Griffin of Michigan, despite the opposition of both home-state Senators, Carl Levin and Debbie Stabenow. Republican Senate leaders then quickly scheduled a trifecta of cloture votes on July 22 for McKeague, Griffin, and another Sixth Circuit nominee from Michigan, Henry Saad, also opposed by Senators Levin and Stabenow. Each of those cloture votes failed as well. The deliberate scheme that week by Republican Senate leaders to inflate the numbers of filibustered nominees was so transparently political that it was reported as such by the press.11 Moreover, Senator Hatch has made clear that he intends to continue to run roughshod over the Judiciary Committee’s rules and traditions, stating publicly before the August recess that he plans to have the Judiciary Committee “keep on pushing ahead on judges.”12