Judicial Selection Monitoring Project Coalition for Judicial Restraint Weekly Update for 5/4/01 Volume IV, Number 6 Published by the Center for Law & Democracy at the Free Congress Foundation. Thomas L. Jipping, M.A., J.D., Director John A. Nowacki, Esq., Deputy Director Jason Koehne, Coalition Coordinator (e-mail: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> ) Phone: 202-546-3000 Fax: 202-543-5605 http://www.freecongress.org/ <http://www.freecongress.org/> ************************************************** IN THIS ISSUE: * Democrats Block Confirmations, Demand Veto For Home-State Senators * Senate Democrats Plan For Confirmation Fights At Weekend Retreat * Bush Likely To Re-nominate Clinton Recess Appointee * Commentary: Politicizing The Courts * Commentary: Senate Democrats -- Prolonging The "Vacancy Crisis" * Senate Democrats Weigh In On Ideological Litmus Tests ************************************************** Democrats Block Confirmations, Demand Veto For Home-State Senators Senate Democrats have said they will not allow votes on President Bush's judicial nominees unless individual Senators are given veto power over nominations in their home states, and in this week's committee meeting, they refused to allow a vote on two Justice Department nominees. Earlier this week, Senate Minority Leader Tom Daschle said that there is "absolute unanimity" among Democrats about holding up confirmations. The dispute centers on the blue slip policy. Home-state Senators signify their approval of a nominee by returning a blue form to the Judiciary Committee. According to a Judiciary Committee report, the policy operates under the premise that home-state Senators are uniquely positioned to be familiar with a nominee from their state, and therefore should be accorded special deference--even before the committee considers the nominee. In a letter dated June 6, 1989, then-chairman Senator Joe Biden explained that a negative blue slip is a significant factor in considering a nomination, but it will not preclude consideration unless the home-state Senators are not consulted about the nomination. Current chairman Orrin Hatch (R-UT) has said that he will follow Biden's lead, but Democrats claim Hatch changed the policy to require approval from both home-state Senators after Republicans won control of the Senate in 1995--and with an eye on states with a lot of judgeships and two Democratic Senators, they are insisting that a Bush nomination without approval of both Senators be considered dead in the water. Hatch repeated his intent to follow Biden's lead at this week's committee meeting. He explained that he ended up giving substantial weight to the opinions of both home-state Senators because they were not consulted about nominations under the Clinton Administration. He also added that a conflict between two Republican Senators had also been a factor. Democrats have also insisted that Bush has not consulted them about the upcoming judicial nominations. Hatch acknowledged that the White House was unfamiliar with what the Senate expected, and added that it has been told what sort of consultation he will require in the future. Hatch explained that the Administration is expected to call home-state Senators and advise them of the President's intent to nominate an individual, before that person's name is submitted to the FBI for a background check. A statement of intent to nominate so-and-so is sufficient, he said. He went on to add that it is then the Senator's responsibility to inform the President of any substantive objection to the nomination. Senator Feinstein then asked whether, when informed of an objection, the Administration says that's the President's decision to make. Hatch replied that if there's an objection based merely on ideology, he believes it's the Senate's duty to consider the nomination. He also stated that there will be two weeks to return blue slips--this may be extended upon request--and that a slip not returned will be presumed to indicate approval. He also said that there would be at least three weeks between a nomination and final committee vote, since some Senators are insisting on obtaining an ABA evaluation, and the ABA indicated it can complete an evaluation in three weeks. None of this sat well with committee Democrats. Senator Schumer said that they need a policy where an individual Senator's consultation is listened to "and abided by." The policy of advise and consent changes with the times, he added. Senator Leahy raised his voice several times, at one point shouting about how Attorney General Ashcroft should be ensuring that the Administration properly consults with Senators about nominations, given that he was once a member of the Committee himself. The nominees for Solicitor General and Deputy Attorney General, Ted Olson and Larry Thompson, were scheduled for a vote after Democrats had held them over from the previous week's meeting. However, when Hatch called a vote, Leahy said he would have to "caucus his members" to see if they'd allow a vote. Senator Kyl said there was no reason to hold those particular nominees up, and wondered why they'd need to caucus about a scheduled vote. He said that it would send a terrible signal if the Democrats refused to vote. Senator Specter announced he agreed with Kyl, except that it would not send a bad signal, he said, it would be the wrong thing to do. Hatch announced that since there was a quorum, there would be a vote, and at that point, all Democrats except Leahy got up and left the room. Leahy eventually left as well, and all nine Republicans waited for about ten minutes. At that point, several Senators began talking about the situation. For example HATCH: They're saying they want the absolute right for one Senator to veto a presidential appointment-- SESSIONS: For any reason-- At Specter's urging Hatch finally cut things off, announcing that they would recess until after the first vote that afternoon. Specter asked that Leahy be given a one o'clock deadline, which Hatch extended to two. Specter asked that all nine Republicans meet at that point for a press conference to condemn the committee Democrats' action. In a news conference later, Schumer said that the Republicans "intend to try to abrogate the Senate role in choosing judges so that they can create the most ideological bench that we have seen in America ever." [sic] "He is dead wrong," Hatch responded at the Republican press conference. "The Democrats want to try to stop the confirmation of . . . Republican nominees. It's that simple," he said. ************************************************** Senate Democrats Plan For Confirmation Fights At Weekend Retreat Forty-two Senate Democrats attended a private retreat last weekend where they mapped out their strategy for battling President Bush's judicial nominations, according to the New York Times. While there, the Democrats heard from Professor Laurence Tribe of Harvard Law School, Professor Cass Sunstein of the University of Chicago Law School, and Marcia Greenberger of the National Women's Law Center. According to some who attended the meeting, the three panelists argued that because the President will attempt to appoint conservatives to the bench, nominees need to be scrutinized more than ever before. "They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite," said one person who was there for the presentation. Senate Minority Leader Tom Daschle also urged his colleagues to refrain from quickly endorsing any Bush nominees. See Tom Jipping's commentary below for an analysis of this event. ************************************************** Bush Likely To Re-nominate Clinton Recess Appointee President Bush is expected to submit several judicial nominations to the Senate very shortly, and according to published reports, Clinton recess appointee Roger Gregory will be among them. Gregory was appointed to the U.S. Court of Appeals for the Fourth Circuit on December 27th, in violation of an agreement Clinton had reached with Senate Republicans. Clinton had initially nominated Gregory for the judgeship on June 30, 2000, a little over a month before the Senate adjourned for the August recess. Because the appointment would expire at the end of this congressional session--next January--Clinton re-nominated Gregory (along with eight others) just over two weeks before he left office. President Bush withdrew those nominations on March 19th. Gregory is a Virginian, and both Senators from Virginia--Republicans John Warner and George Allen--have supported confirming Gregory for a lifetime appointment. The state issue was one of the objections raised when Gregory was initially nominated, since the seat in question was considered a to be a North Carolina seat. ************************************************** Commentary: Politicizing The Courts By Thomas L. Jipping Harvard law professor Laurence Tribe is at it again. According to the New York Times, he recently met with Senate Democrats who want to "change the ground rules" for judicial confirmations. The first time he did that seriously damaged the judicial selection process and politicized the judiciary. This time the results may be even worse. In Article II, the Constitution gives the president the power to nominate and, subject to Senate approval, the power to appoint federal judges. America's founders explicitly rejected letting the Senate pick judges. This constitutional arrangement suits Democrats just fine when a Democrat is in the White House; the drumbeat for eight years has been how the Senate should not obstruct the president's constitutional duty to appoint judges. Since their goal, however, is not constitutional government but an activist judiciary delivering a political agenda, Democrats reject this arrangement when a Republican is in the White House. Unable directly to control the president's nominations, Democrats try to manipulate judicial selection through the Senate's confirmations. Back in 1987, America had a Republican president but had elected a Democrat Senate majority. The Supreme Court had been closely divided in many important cases, with Justice Lewis Powell the "swing" vote often determining the majority. That year, in Booth v. Maryland, he wrote the opinion for a 5-4 liberal majority concluding that introducing victim impact evidence at sentencing in a capital murder case violates the Constitution's Eighth Amendment ban on cruel and unusual punishment. Two months earlier, in McCleskey v. Kemp, he wrote the opinion for a 5-4 conservative majority concluding that racial statistics alone cannot show that the death penalty violates the Eighth Amendment. In Pope v. Illinois, Justice Powell completed the 5-4 conservative majority making easier convictions for selling obscene material. The previous year, in Thornburgh v. American College of Obstetricians and Gynecologists, he completed the 5-4 liberal majority striking down several abortion regulations. Justice Powell's 1987 retirement announcement carried high stakes, especially for those seeking an activist judiciary to deliver a political agenda the political process had rejected. President Ronald Reagan, however, sought to appoint judges with no political agenda, who would apply the law made by the people rather than making up their own. Enter Professor Tribe. In his 1985 book "God Save This Honorable Court," he outlined new ground rules designed to let the Senate highjack judicial selection. His preface made clear his purpose: "Yet, as I thought how much more might in fact be at stake in such nominations than in nearly anything else that might be done -- or undone -- by [President Reagan], I became convinced that a book like this one was long overdue." The Senate, he said, should evaluate nominees based on how they were likely to rule on certain issues once on the bench. As Sen. Orrin Hatch, R-Utah, put it reviewing the book for the Harvard Law Review, Professor Tribe called for "a stiff injection of politics into Senate confirmation proceedings for Supreme Court nominees." Cut to 2001. The Supreme Court has been closely divided for some time in many important cases, with Justice Sandra Day O'Connor the "swing" vote that often determined the majority. Last June, in Boy Scouts of America v. Dale, she completed the 5-4 conservative majority to uphold a private organization's right to determine its own message and membership. The same day, in Stenberg v. Carhart, she completed the 5-4 liberal majority to strike down a Nebraska law banning partial-birth abortion. Last December, in Bush v. Gore, she joined the 5-4 conservative majority concluding that differential vote-counting standards violated the Constitution's guarantee of equal protection. And two years ago, in Davis v. Monroe County Board of Education, Justice O'Connor wrote the opinion for the 5-4 liberal majority expanding federal law to regulate behavior between students in local schools. The 2000-2001 term is the court's seventh without a new appointment, the longest stretch since 1823. Speculation has steadily increased that one or more justices may soon retire. Justice O'Connor and two colleagues with whom she created those shifting majorities, liberal John Paul Stevens and conservative William Rehnquist, top the speculators' list. Liberals again see the court's future decisions up for grabs and, because a Republican again occupies the White House, Senate Democrats are again looking to inject politics into judicial confirmations. Enter Professor Tribe. According to the New York Times, he met with more than 40 Senate Democrats to forge "a unified party strategy to combat the White House on judicial nominees." Tribe's strategy seems almost mainstream compared to other radical proposals, such as his Harvard faculty colleague Bruce Ackerman's bizarre call for a complete moratorium on Supreme Court confirmations until after the 2004 election. But Tribe's renewed push for politicizing the confirmation process is more dangerous than in 1987 for at least two reasons. While Democrats had a 55-45 Senate majority in 1987, Republicans now hold a technical majority. Tribe's strategy thus requires even more political maneuvering and partisan tactics, further tainting the confirmation process. Senate Democrat leaders have, for example, demanded an unprecedented voice in nominations, a phase of the process in which the Senate has no constitutional role at all. Sen. Edward Kennedy, D-Mass., has said that in addition to objective considerations of integrity, competence and temperament, Democrats would demand that nominees pledge to rule a particular way on issues such as abortion. Not only do such political litmus tests directly undermine judicial independence, enforcing them from the partisan minority raises the specter of filibusters and other obstruction techniques. In addition, Professor Tribe's politicizing campaign is no longer limited only to Supreme Court appointments. The "unified strategy" he is helping Senate Democrats forge precedes President Bush's imminent nominations to the federal appeals and district courts. Led by Professor Tribe, Senate Democrats have politicized judicial selection before. The result, as Sen. Hatch described it, has been compelling nominees "to march in step with a particular orthodoxy on litmus test issues." The judiciary then loses its status as "an independent institution with a nonpolitical constitutional mission distinct from those of the policymaking and administrative branches." This impending attack on judicial independence, the rule of law and self-government is an attack on the freedom of all Americans. Thomas L. Jipping is Vice-President for Legal Policy at the Free Congress Foundation. This column may also be found at http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22671 <http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22671> . His WorldNetDaily columns appear on Thursdays. ************************************************** Commentary: Senate Democrats--Prolonging The "Vacancy Crisis" By John Nowacki How can a crisis situation continue to worsen while the very people who sounded the alarm fall silent? When you consider that you're dealing with Senate Democrats and judicial nominations, it's not so difficult to understand. For years, Democrats have talked about a vacancy crisis in the federal judiciary. In their drive to confirm Bill Clinton's nominees, it was a constant refrain heard in nearly every speech or floor statement. But Clinton is no longer appointing judges, and while vacancies have gone up, Senate Democrats have done more than merely fall silent -- they are talking openly of filibustering nominations...before the President has presented a single judicial nominee. Last summer, with 21 vacancies in the federal appellate courts, Senator Patrick Leahy said that "their ability to administer justice for the American people" is being hurt. There are 31 vacancies on those appellate courts today, and when asked last week whether Democrats will filibuster nominees, the ranking Democrat on the Judiciary Committee said: "Well, we'll just see what happens." Until recently, Senator John Edwards was saying that it is "critically important that North Carolina gain another judge on the Fourth Circuit." While there are still no North Carolinians on the Fourth Circuit, the Raleigh News & Observer reported last week that Edwards has "ratcheted down his rhetoric" about the matter. The critical situation has been downgraded to "it depends on who it is, of course." And in a recent National Public Radio interview, Edwards indicated his willingness to filibuster nominees. In 1998, when there were 84 vacancies on the federal courts, Senator Richard Durbin announced that "we are facing a nationwide crisis. Our judicial system is being slowly but surely strangled." There are 100 vacancies today, but with Democrats positioning themselves to block confirmations, Durbin is suddenly a lot less vocal about that nationwide crisis. Last March, when there were 75 vacancies -- 25 fewer than today -- Senate Minority Leader Tom Daschle said there was a "dire shortage" of judges, and that "we have a judicial emergency now, throughout the country." But as the New York Times reported on Tuesday, Daschle was at a closed-door meeting of Senate Democrats over the weekend, where he cautioned his colleagues about making snap-endorsements of Bush nominees (as Senators Torricelli and Biden did when John Ashcroft was nominated), lest it cause difficulties in blocking their confirmation. According to the Times report, the Democrats also played host to Professors Laurence Tribe of Harvard and Cass Sunstein of the University of Chicago, who told them "it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite." Not quite what one would expect when dealing with a situation well beyond what Daschle called a "judicial emergency." When Democrats controlled the Senate, even under President Clinton, they kept vacancies well above the 100 mark. In fact, they only dipped below 100 in mid-1994, just before they lost the Senate. On the other hand, Republicans -- under President Clinton -- kept judicial vacancies much lower, generally between the 50 and 70 marks. Even at the end of Clinton's term, at the beginning of last November, there were just 66 vacancies. That number has only risen to 100 because of natural attrition -- retirements, deaths, and so on -- and the addition of new judgeships last fall. Last November, with those 66 vacancies, Senator Leahy said that a truer measure of vacancies would include the new judgeships he was proposing -- a vacancy figure of 135. By his own reckoning, then, there are "really" 169 vacancies today. Earlier, in July -- with just 7 fewer vacancies -- Leahy said the figure was detrimental to the American people and the administration of justice. Now that that number is even higher, Leahy should be doing his best to lay the groundwork for confirmations. In fact, he's already given his word to do just that. In 1998, Leahy pledged to "do what I can to help end the vacancy crisis that is plaguing the federal courts and threatening the quality of justice for the American people." Instead, he and his colleagues are laying the groundwork to block confirmations. Senate Democrats, then and now -- it's quite a contrast. John Nowacki is Deputy Director of the Free Congress Foundation's Center for Law & Democracy. ************************************************** Senate Democrats Weigh In On Ideological Litmus Tests "So any member who is nominated for the district or circuit court who, in fact, any Senator believes will be a person of their word and follow stare decisis, it does not matter to me what their ideology is, as long as they are in a position where they are in the general mainstream of American political life and they have not committed crimes of moral turpitude, and have not, in fact, acted in a way that would shed a negative light on the court." -- Senator Joseph Biden, Congressional Record, March 19, 1997. "We need to get away from rhetoric and litmus tests . . . we do not need our Federal courts further packed for ideological purity." -- Senator Patrick Leahy, Congressional Record, July 27, 2000. "She was asked whether she personally agreed with a number of positions taken recently by the ACLU. I objected to this line of questioning at the hearing and caution the Senate that we are headed down a road toward an ideological litmus test that does not well serve the Senate, the courts, or the American people." -- Senator Patrick Leahy, March 17, 1998. **************************************************
