Several days ago, USA Today reported on some comments made by Senator Patrick Leahy about the Senate GOP’s refusal to consider Merrick Garland’s nomination to the Supreme Court. Judiciary Committee chairman Chuck Grassley has fallen in line behind the order of his boss, Mitch McConnell, and the demands of far-right extremist groups like the Judicial Crisis Network, who make wildly untrue claims about Judge Garland’s record. GOP senators’ decision to hide behind those outside attacks and refuse to give Judge Garland a chance to defend himself is “sleazy,” Leahy said. He also urged Grassley to show some independence from partisan interests, as Leahy did when he chaired the Judiciary Committee in parts of George W. Bush’s presidency.
Conservative Ed Whelan challenged Leahy’s positive characterization of his chairmanship on the National Review website in a piece he called “Patrick Leahy (D-Sleaze).” Whelan criticized then-Chairman Leahy for not holding hearings on a number of Bush’s nominees. One might think the committee was letting vacancies pile up around the country: that Leahy was fiddling while the American court system burned. In fact, at this point in Bush’s last two years, the Democratic-controlled Senate had already confirmed 45 circuit and district court nominees, while the current Senate has confirmed a mere 17. During the entire two years of the 110th Congress, the Senate confirmed 68 judges, a number that Chuck Grassley and Mitch McConnell show no interest in even trying to match.
In fact, it is Grassley and McConnell who are fiddling. When the current Congress began, there were 40 circuit and district court vacancies, a number that has increased to 74 due to GOP inaction. (If you include the Court of International Trade, the increase is from 43 to 78.) In the same period, judicial emergencies have nearly tripled, jumping from 12 to 34 on April 14 (a change in how the Administrative Office of U.S. Courts weights cases went into effect the next day, affecting the number of emergencies and thereby complicating comparisons after that date). In contrast, vacancies and emergencies went down in 2007-2008 because Democrats processed judicial nominations in a responsible manner. Leahy also chaired the committee for 17 months in 2001-2002, during which the Democratic-controlled Senate confirmed 100 of Bush’s judicial nominees. Circuit and district court vacancies went down during that period from 109 to 60. When it comes to taking seriously their constitutional responsibility to make sure our federal judiciary is sufficiently staffed, the difference between the two parties could hardly be starker.
The contrast is not limited to the confirmation of judicial nominees. In Bush’s last two years, Sen. Leahy held 22 nominations hearings, including one as late as September 23, 2008 … just a few weeks before the presidential election to replace the term-limited George Bush. Chairman Grassley has scheduled a confirmation hearing for April 20, the first since January, only the 13th of the current Congress, and he has suggested that he may shut the process down in July.
With 33 circuit and district court nominees in committee, and only five of them having had a hearing (but not until April 20), talk of such an early shutdown is obscene. Seven of the nominees who have yet to be granted a hearing are circuit court nominees, most of them nominated more than two months ago. Three of the circuit court nominees already have their “blue slips” from their home state senators. The fact that this is an election year should not prevent a hearing for these circuit court nominees: When President Bush nominated Steven Agee to the Fourth Circuit in March of 2008, Sen. Leahy scheduled a hearing seven weeks later, and a committee vote just two weeks after that.
And certainly no one could believably question Leahy’s fairness. When President Obama took office, Chairman Leahy maintained the same rules and practices he had used with Bush’s nominees. For instance, as under Bush, he opted to require the “blue slip” approval of both home-state senators before holding a hearing on a nominee, something not in the committee rules but rather a prerogative of the chair. This led to a number of highly qualified Obama nominees being denied a chance to publicly respond to the often unfair and inaccurate attacks being made against them by GOP senators. Other times, the Republican senators gave no public reason for their opposition, yet still used Leahy’s blue slip practices to deny hearings to targeted nominees. He even allowed Kansas’s GOP senators to change their mind after a hearing and, at their request, did not allow a scheduled committee vote on Tenth Circuit nominee Steve Six to take place. The committee records are filled with Leahy’s sharp criticism of how qualified nominees were being denied hearings this way, including ones strongly supported by their one Democratic home state senator, including then-Majority Leader Harry Reid. Nevertheless, he did not change his blue slip practice as he could have done unilaterally.
Whelan also criticizes Senator Leahy as “sleazy” for not getting controversial Fifth Circuit nominee Leslie Southwick confirmed quickly enough and then for opposing his nomination altogether. As chairman, Sen. Leahy could have simply chosen not to give him a hearing. In fact, at the confirmation hearing, Sen. Hatch specifically thanked Chairman Leahy for scheduling it over the criticism from “far left groups.” Giving a nominee an opportunity to address senators’ concerns and defend their record in a public forum is not “sleazy.”
As Sen. Leahy pointed out last week, what’s “sleazy” is the way that the Republican-controlled Senate is mistreating the president’s Supreme Court nominee. And while well-financed far-right groups are working overtime to keep GOP senators in line, two thirds of Americans are rejecting that position and support a hearing for Chief Judge Garland. Chairman Grassley would do well to listen to the American people.