Commentary

Leahy’s Slow Roll on Confirmations

This article originally appeared in the Wall Street Journal on November 19, 2002.

In his Nov. 13 letter “Democrats Work Hard to Process Nominations,” Sen. Patrick Leahy (D. Vt.) takes exception to your Oct. 18 editorial criticizing the pace at which the Senate Judiciary Committee he chairs is moving on President Bush’s judicial nominations. Objecting that he’s not using the war on terrorism to “slow roll” the nominees, Sen. Leahy painstakingly lists the hearings his committee has held, concluding that “the Senate has confirmed more judges to the district and appellate courts than were confirmed by this time in either the first year of the first Bush administration or the first year of the Clinton administration”-all by way of giving the matter “clarification and context.”

Let’s clarify this numbers game and put it in true context. In truth, because there are far more vacancies now, there are far more nominees than there were in the first years of either Bush senior or Bill Clinton. Thus, you cannot compare confirmations alone to determine whether a “slow roll” is going on. In his first year, Bush senior had 15 of 24 nominees confirmed, or 62%; Mr. Clinton’s numbers were 27 of 47, or 57%. The numbers for President Bush, by comparison, are 18 of 64, or 28%.

But when you look closer, it’s more sinister. Since President Bush took office, there have been 118 judicial vacancies on the federal courts. Many are listed as “emergencies.” Half the seats on the Sixth Circuit Court of Appeals are today empty, yet the Senate dawdles, especially on the appellate seats. To date, only five of Mr. Bush’s 28 nominees for the appellate courts have been confirmed-and two of those were Clinton holdovers, renominated by Mr. Bush as a gesture to the Democrats. And it isn’t that these were late nominations: 10 of the appellate court nominees have been twisting in the wind since May, never having been given even a hearing.

Are they substandard nominees? To the contrary, they’re some of the most outstanding lawyers and legal scholars in the nation-and therein lies the problem. Still smarting from Bush v. Gore, Democrats are fighting for the courts, which is why they’ve called, explicitly, for an ideological litmus test for judges. When you look closely at who has and hasn’t gotten through the process, it’s clear that Sen. Leahy and his colleagues are engaged in ideological cherry picking, plain and simple. Hard at work? You bet they are.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.