Where I Stand — Mike O’Callaghan: So where is the crisis?

Friday, Nov. 14, 2003 | 8:37 a.m.

THE FEDERAL JUDICIARY "CRISIS" rang a bell for me. I was upset when the Republican senators refused to act on several federal judge nominations by President Bill Clinton. Also, the withholding of salary increases for federal judges by the GOP and House Minority Whip Tom DeLay, R-Texas, saying "the judges need to be intimidated," angered me.

Now we are being told that the Democrats are creating a crisis in the federal courts by not approving enough of President George W. Bush's nominations. At first blush this made me ready to sit down and blister the Democrats for playing games that hurt our judicial branch of government.

The nomination of California Supreme Court Justice Janice Rogers Brown to fill a vacancy on the U.S. Court of Appeals in the District of Columbia was the first case I studied. She has been nominated to fill a vacancy that has remained since the Republicans blocked two Clinton candidates for the seat.

David G. Savage, writing in the Los Angeles Times, explains why the seat is vacant: "If confirmed by the full Senate, Brown would fill a seat on the U.S. Court of Appeals in the District of Columbia that is vacant in part because Republicans blocked two candidates that Clinton nominated in 1999.

"Washington lawyer Allen Snyder, a former clerk to U.S. Supreme Court Chief Justice William H. Rehnquist, had a hearing in the committee, but despite a lack of opposition, he failed to gain a confirmation vote in the Senate. White House lawyer Elena Kagan was denied even a hearing in the GOP-controlled Judiciary Committee. She has since become dean of Harvard Law School."

Savage goes on to point out that "Upon taking office, President Bush named Washington lawyers John Roberts and Miguel A. Estrada to the same appeals court. Roberts, also a former clerk to Rehnquist, won confirmation this year and is now the junior judge on the U.S. Court of Appeals for the District of Columbia. Democrats filibustered and blocked a final vote on Estrada, who subsequently withdrew."

So much for the White House-created firestorms about the necessity of filling the vacant seat in the D.C. U.S. Court of Appeals. The New York Times, in an editorial, commented: "What conservative interest groups are unhappy about is that Senate Democrats are balking at a small number of nominees who lie well outside the mainstream. How far outside? Janice Rogers Brown, a California Supreme Court justice nominated to the United States Court of Appeals for the District of Columbia Circuit, has publicly questioned incorporation, a well-settled legal doctrine holding that important parts of the Bill of Rights apply to the states. (At her confirmation hearing, she insisted that in fact she now accepts incorporation.)"

So what's the truth? The vacant seats on the federal bench is at its lowest rate in 13 years. Actually Bush has already had greater success in having his nominees approved than Clinton, George H.W. Bush and Ronald Reagan during their third years in office. When compared to the large number of Clinton nominees held up by a Republican-dominated Senate, he has had almost unmatched success. He has had only a handful of nominees, like Janice Rogers Brown, who have been rejected or held up.

Returning to Savage I find the following paragraph most interesting: "The intense partisan battle over a handful of judges aside, Bush has already won approval of 168 judges, more than President Reagan achieved in his first term in the White House. And with 68 of his nominees winning confirmation in 2003 as of Wednesday, President Bush has had a better record this year than President Clinton achieved in seven of his eight years in office."

Rather than getting all heated up about the White House-created "crisis," I'll just sit back and watch the Washington wars from a safe distance.