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April 4, 2002

Justice Delayed...

By and

Flip ahead in your desk calendar, and circle May 9.

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 confirmed.

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 group?

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 denied.

Todd 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 Public Policy.

Distributed nationally on the Knight-Ridder Tribune wire

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