May 9, 2003

May 9, 2003 | Commentary on Legal Issues

It's Time To Solve the Judicial Confirmation Crisis

The federal judiciary is in crisis. At the circuit court level alone, there are 15 openings currently listed as "judicial emergencies." Unfortunately, the Senate confirmation process is so shattered, it will require a bold and innovative move to put it back on the right track.

Some background: On May 9, 2001, President Bush nominated 13 exemplary candidates to the courts of appeals. One year later, only Roger Gregory and Barrington Parker -- the two judges who had first been appointed by President Clinton -- were confirmed. Now, two years later, four of those 13 are still waiting for a Senate vote on their nominations.

When campaigning in 2000, President Bush said he would nominate conservative judges like Antonin Scalia and Clarence Thomas. He was even more direct in the off-year election of 2002, repeatedly urging Senate Democrats to allow votes on his judicial nominees.

Americans responded by returning control of the Senate to the Republicans. Reduced to minority status, Senate Democrats swiftly launched an unprecedented filibuster strategy to block nominees they claim are "extreme."

A filibuster means 60 senators must vote to end debate before the Senate can vote on a nomination, even though a majority would then approve the nomination.

The "extremist" targets of the filibuster include Miguel Estrada and Pricilla Owen. Both nominees have outstanding credentials. Estrada, for example, received a unanimous "well qualified" rating from the American Bar Association and is backed by a series of Democratic Justice Department officials for whom he has worked. Owen was re-elected to the Texas Supreme Court in 2000 with near-record voter approval and with the endorsement of every major newspaper in Texas.

Senate opponents have cited procedural reasons to justify their opposition, including the false charge that Estrada did not answer all of their questions. In truth, they seem to oppose these nominees because they do not espouse the liberal activist positions some Senate Democrats believe women and minority judges should hold. Such motivations have a name: Bigotry.

Until now, the only successful filibuster over any judicial nomination was in 1968, when the Senate stopped President Lyndon B. Johnson's effort to elevate Justice Abe Fortas to chief justice of the Supreme Court. That was a bipartisan filibuster. Senate records show no cases where an appellate nominee was filibustered to death.

By launching these filibusters, a minority of senators have shown they are willing to block the will of both the president -- the man given the constitutional duty to nominate judges -- and the will of a majority of their fellow senators. All this in an attempt to force the president to name judges they consider more "moderate."

How should President Bush respond to this challenge? One answer, the wrong one, would be to continue doing nothing more than merely urging the Senate to vote. That would be like giving the U.N. Security Council endless authority to debate the merits of bold action -- and offering Senate Minority Leader Thomas Daschle veto power.

To accede to the minority's undemocratic tactics would be to abandon the idea that, in the Senate, the majority rules. Even the nomination of Clarence Thomas, which was wrongly politicized, did not result in a filibuster. Only 51 votes were needed to confirm him. Doing nothing now would raise that bar to 60 votes forever more. President Bush is bringing democracy to Iraq; he must also bring it to the Senate.

That's why the president should exercise his constitutional power to make recess appointments. That means acting while the Senate is out of session to name judges who will serve temporarily until the permanent nominee is approved.

President Bush would not be the first to use this power in the face of Senate delay. More than 300 judicial recess appointments have been made. In fact, President Clinton gave a recess appointment to Roger Gregory only six months after nominating him to the Fourth Circuit court of appeals. Therefore, it's even more appropriate for President Bush to use that same power when his nominees command majority support in the Senate and have been waiting as long as two years for a vote.

The president should also make strategic appointments that force congressional Democrats to pay a political price paid for their constitutional abuse. Their motivation for the filibuster is to prevent so-called "extreme conservatives" from taking a place on the federal bench.

So, instead of appointing the moderate judicial candidates the Democrats are already blocking, President Bush should make recess appointments of even more well-known conservative scholars and former judges who are willing to serve until the Senate votes up or down on the president's nominees. We hope Robert Bork and others are willing to serve their country again, if only temporarily, on the bench.

These appointments would serve notice that anti-democratic filibuster tactics used by a Senate minority cannot take away a president's right to appoint judges. It's admittedly an extreme strategy, but large problems require bold solutions.

Paul Rosenzweig and Todd Gaziano are senior legal fellows in the Center for Legal and Judicial Studies at The Heritage Foundation.

About the Author

Todd F. Gaziano Director, Center for Legal & Judicial Studies
Edwin Meese III Center for Legal and Judicial Studies

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies