Editorial: Tough talk, but bereft of the facts

Friday, Nov. 23, 2001 | 1:52 a.m.

Republicans are complaining that President Bush's nominees for federal judgeships haven't received a fair shake from the Democratic-controlled Senate. The Republicans say that Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, isn't holding hearings promptly and isn't taking votes fast enough on the nominations.

"It's purely partisan politics," Sen. Jon Kyl, R-Ariz., said two weeks ago. "They don't want conservative judges on the court." Just over a week ago Vice President Dick Cheney chimed in as well. "The deliberate slowing of the confirmation process is unworthy of the United States Senate and an injustice to the men and women whose names have been presented," Cheney said in a speech to Federalist Society, an ultra-conservative legal group.

Some serious accusations and harsh words from Republicans, but they simply don't stand up to the facts. As of mid-November in the first year of Bush's presidency, 17 of his nominees had been approved. At the same point in the first year of Clinton's presidency, the Senate had confirmed only eight judges. By mid-November of 1989, the first year of the elder Bush's presidency, only 10 judges had been confirmed by the Senate. So Leahy actually is ahead of the pace when comparing the Senate's speed in handling nominees from previous administrations' first year in office.

Leahy also has had to overcome obstacles not of his making. After Sen. Jim Jeffords left the Republican Party earlier this year and put the Democrats in control of the Senate, the Republicans tied up the reorganization process for a month, which meant that no hearings could take place on Bush's nominations. In addition, the Sept. 11 terrorist attacks delayed the process as the Judiciary Committee had to devote time to holding hearings on the administration's anti-terrorism legislation, which obviously took priority over judicial confirmation hearings. The anthrax mail scare also has taken its toll on all of Congress' operations, but even on Oct. 18, when all of the Senate office buildings were closed due to the investigation, the Judiciary Committee met in a borrowed room in the Capitol to approve four nominees. That day the committee also held a hearing o n five of the nominees, including Reno lawyer Larry Hicks, who eventually was confirmed as a U.S. district judge in Nevada ! by the Senate earlier this month on an 83-0 vote.

Numbers supplied by the People for the American Way demonstrate that it is the Republicans, not the Democrats, who have engaged in excessive partisanship. In the six years that the Democrats were in the majority in the Senate, just 25 percent of Presidents Reagan and Bush's nominations were blocked. But later, in the six years that the Republicans were the majority in the Senate, 35 percent of President Clinton's nominees were blocked, a substantial increase. In 1998 Sen. Majority Leader Trent Lott had no qualms about the delays. "Should we take our time on these federal judges? Yes. Do I have any apologies? Only one: I probably moved too many already."

Republicans have made a cold, brutal calculation to pack the judiciary with conservatives. So when a Democrat controls the White House, Republicans work overtime to derail the nominations. But when a Republican is in the White House, the GOP partisans kick and scream about perceived delays in an attempt to get the Democrats to back down on their opposition so that right-wing conservatives can push through as many of their ideological soul mates as possible.

President Bush is enjoying extraordinarily high popularity right now, but that is no reason why the Democrats should roll over and let him appoint members to the federal judiciary who hold extreme views and aren't qualified. The Democrats should promptly, but carefully, weigh the nominees who, if confirmed, receive lifetime appointments.