Senate's delays cheat Americans of judges
Rob Nederhood
Calvin College Chimes
GRAND RAPIDS, Mich.
When President George W. Bush took office one year ago, he vowed to remedy a serious crisis in the U.S. justice system: the lack of federal judges. Few deny it is a crisis: The 6th circuit court of appeals, which has jurisdiction over the state of Michigan, has five vacancies on what is supposed to be a 16-member panel. The 9th Circuit Court of Appeals, which has jurisdiction over the Western United States and has seen its caseload rise 95 percent in the last 15 years, also has five vacancies.
During the Clinton years the federal courts had, at any one time, between 80 and 100 vacancies, resulting in a massive backlog of cases. Yet despite his good intentions, at the end of Bush's first year in office, the number of vacancies on the federal bench has risen to 110. So what gives? The President has — as we have come to expect from him — held up his end of the bargain, nominating 80 judges during the past year, enough to seriously alleviate the crisis.
The problem is this: only 28 of those nominees have gained the requisite confirmation by the Democrat-controlled Senate. Bush handed down most of the nominations last spring, yet nearly a year later, the Senate has failed to act on them. In fact, of the President's first batch of 11 nominees, only two have even been granted a hearing in the Senate Judiciary Committee, which must approve the nominees before the full Senate can confirm them.
Senate Democrats have effectively stonewalled Bush's slate of nominees, placing political grudges above the welfare of the nation's court system, and by extension, the American people. The main culprits behind this travesty of justice are Senate Majority Leader Tom Daschle (D-SD) — responsible for deciding what business gets taken up when — and Sen. Patrick Leahy (D-VT), Chairman of the Judiciary Committee, responsible for holding hearings.
If ideological differences or a lack of qualified nominees were the motivation for the Democrats' dilatory tactics, one could consider giving them a break. Unfortunately, the reason for the "confirmation gap" seems to be political spite — partisanship for the sake of partisanship.
Case in point: Bush's nomination of Eugene Scalia to serve as the top lawyer at the Labor Department. Scalia is eminently qualified; he graduated from the University of Chicago Law School, where he was editor of the law review, worked under former Education Secretary William Bennet and practiced employment law in D.C. while serving as a consultant to the Labor Department. He has been praised by Sen. Ted Kennedy (D-MA) as "a great lawyer," and by liberal law professor Cass Sunstein of the University of Chicago as "as good a choice as can be imagined."
So why did Daschle and company refuse even to bring his nomination up for a vote? He is the son of conservative Supreme Court Justice Antonin Scalia, who sided with Bush in the Bush vs. Gore decision, which effectively granted Bush the presidency last fall. Political paybacks are an established part of our system, of course, but they should never be dealt out at the expense of the American people.
Fortunately, Bush used his power of recess appointment to go around Daschle and grant Scalia and a few other nominees temporary, one year appointments, at the end of which they will again require Senate confirmation. Predictably, Daschle called the move "regrettable," though it seems not half as regrettable as the actions of his own party.
Unfortunately, Bush's troubles getting his nominees confirmed have not been limited to the judicial and law enforcement sectors. Of the 508 government positions requiring Senate confirmation, only about 300 have been filled. Many of these unfilled positions are crucial to the successful execution of the nation's war on terrorism. Some are foreign policy positions, a situation that White House Spokesman Ari Fleisher calls "particularly disturbing." Some are even more important to the battle against terrorism, such as the voids at the head of the Food and Drug Administration — which is responsible for approving medicines and vaccines necessary as preventive measures against bioterrorism — and the National Institutes of Health, as well as vacancies in important deputy positions at the Federal Aviation Administration and Department of Defense.
After criticizing the President for moving too slowly to secure the nation's airports, Senate Democrats have refused to confirm the nominee to head the newly created Transportation Security Administration, highly qualified former Secret Service director John Magaw. Bush's Cabinet stood incomplete for nearly 10 months until the December confirmation of John Walters as drug czar.
Daschle and other Democratic leaders have offered several excuses for their refusal to consider President Bush's nominees. In the case of Scalia, for example, Daschle claimed that there were not 60 votes "required" to confirm Scalia. The only reason that 60 votes would be necessary, of course, would be to block a filibuster. If Daschle was so convinced that Scalia was a "very controversial" nominee who didn't have the simple majority needed for confirmation, he could have merely called a vote and defeated the nomination.
However, he chose to continue to stonewall by announcing an extraordinary standard for Scalia's confirmation.
With some truth, Leahy has pointed out that the events of Sept. 11 have also delayed confirmations. However, several of these confirmations have been made even more urgent by the country's war on terrorism. It is instructive to note that since the attacks, Senate Democrats have found time to honor Barry Bonds for his "spectacular record-breaking season," and to pass the pork-filled Railroad Retirement Act, while Leahy himself has found time to secure $1.5 million for the revitalization of the tiny town of Winooski, Ver. It certainly doesn't seem as if filling the epidemic of vacancies in the judiciary and upper reaches of government was ever on their list of priorities.
Perhaps the most effective argument for Democrats has been to point out that the Republicans did the same thing to President Clinton's nominees throughout his tenure. Though true, that certainly doesn't make the Democrat's inactions good for the country. The hypocrisy of Democratic leaders is evident when one considers that when Clinton was trying to push his nominees through the Senate when there were only 75 vacancies, Daschle claimed that "there is a dire shortage — we have a judicial emergency right now," and Leahy declared that "Any week in which the Senate does not confirm three judges is a week in which the Senate is failing to address the vacancy crisis."
Presumably, Leahy has abandoned the three-judges-per-week standard.
This column first appeared in the January 18, 2002 issue of the Calvin College Chimes, Calvin College's campus newspaper. It is reprinted here courtesy of U-WIRE.
The views expressed in this column are those of the author and not necessarily those of The Observer.
All Viewpoint Stories for Monday, January 21, 2002
