April 4, 2002
By Todd F. Gaziano and Rich Tucker
It's not that far away.
Unless something changes, May 9 will mark an important
anniversary. On that date last year, President Bush nominated 11
men and women to fill open federal judgeships. President Clinton
had originally appointed two of them. Those two have been
One of the president's nine other nominees has been sworn in.
But not one of the remaining eight has had even a hearing before
the Senate Judiciary Committee.
In almost a year, not even one hearing. What's wrong with this
Are they a bunch of extremists? Not according to Democratic
comments at the time.
The New York Times on May 10, 2001, quoted Senate
Majority Leader Tom Daschle: "I'm pleased the White House has
chosen to work with us on this first group of nominees." In fact,
the Times reported, "none of the Senate Democratic leaders
who spoke to reporters at a news conference today -- Mr. Daschle,
Senator Patrick J. Leahy of Vermont, the top Democrat on the
Judiciary Committee, and Senator Charles E. Schumer of New York,
top Democrat on that panel's courts subcommittee -- criticized any
of the nominees."
No criticism, but no hearings. Why?
Are there plenty of federal judges already? No. In fact, at this
writing, there are 95 vacancies in the federal courts. The vacancy
rate on the U.S. appellate courts -- often the courts of last
resort -- is 17 percent.
Even worse, according to the Administrative Office of the U.S.
Courts, 40 of the openings represent "judicial emergencies." These
are positions that need to be filled quickly, to keep the legal
process from grinding to a halt. Eight of President Bush's nominees
were to judgeships classified as emergencies.
Maybe some bureaucrats are dragging their feet. Judges must
undergo an FBI background check, and the American Bar Association
evaluates them. Have those groups dropped the ball? Let's check the
Senate Judiciary Committee's Web page.
It says the FBI signed off on all the nominees on May 14, 2001
-- five days after their nomination. The ABA had turned in all its
paperwork by mid-July. In fact, the ABA completed its review of
most of the nominees in June. All 11 were listed as "well
qualified" or "qualified."
OK, hearings probably were scheduled for last fall, but put off
by the earth-shaking events of Sept. 11, right? Again, let's turn
to the committee's Web site.
It lists no hearings between April and September of 2001. So
even without the terrorist attacks, none of these nominees was
going to get a hearing until the fall, at the earliest.
Keep in mind that, shortly after President Bush's nominations on
May 9, the Senate flipped into Democratic hands when James Jeffords
of Vermont left the Republican Party and declared himself an
independent on May 24. Since then, Democrats have chaired every
committee and subcommittee.
Judiciary is now controlled by Vermont's other senator, Democrat
Patrick Leahy. He recently bragged that the Senate has confirmed 42
judges since he took over -- which, he pointed out, is more than
the 39 judges confirmed in 2000, when Republicans ruled.
But that ignores the fact that President Bush has nominated more
judges and nominated them more quickly than any president in
history -- almost 100 in his first year in office. So nearly
two-thirds of his nominees have not been confirmed.
In attempting to defend the way his committee torpedoed the
nomination of Charles Pickering, who was voted down on a party-line
vote, Sen. Leahy said that "the Constitution provides a democratic
check on the power of appointment by requiring the advice and
consent of the Senate."
That's true. But it's difficult to see how the Senate can
possibly give advice or consent if it won't even hold hearings.
That's why, for the eight men and women who've been in limbo for
almost a year, the old adage applies: Justice delayed is justice
Gaziano is director of the Center for Legal and Judicial
Studies at The Heritage Foundation. Rich Tucker is
manager of professional training in Heritage's Center for Media and
Distributed nationally on the Knight-Ridder Tribune wire
Todd F. Gaziano
Director, Center for Legal & Judicial Studies
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