Judicial Selection Monitoring Project Coalition for Judicial Restraint Weekly Update for 5/24/01 Volume IV, Number 9 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/> http://www.judicialselection.org ************************************************** IN THIS ISSUE: * Bush Submits Five New Nominations. * Commentary: Court Cancelled. ************************************************** Bush Submits Five New Nominations President Bush has followed up his initial group of 11 judicial nominees with five more nominations over the past week. On May 18, he nominated Richard F. Cebull and Sam E. Haddon to be U.S. District Judges for the District of Montana. On May 21, he nominated Sharon Prost to be a U.S. Circuit Judge for the Federal Circuit. On May 22, he nominated Lavenski R. Smith, of Arkansas, to be a U.S. Circuit Judge for the Eighth Circuit. And on May 23, he nominated William J. Riley, of Nebraska, to be a U.S. Circuit Judge for the Eighth Circuit. Richard Cebull has been a U.S. Magistrate Judge in Great Falls, Montana. Sam Haddon is in private practice at Boone, Karlberg & Haddon in Missoula, Montana. Sharon Prost is the Chief Counsel at the U.S. Senate Judiciary Committee, a position she has held since January. She was Deputy Chief Counsel from 1995-2001, and was Acting Solicitor for the National Labor Relations Board from 1989-1992. Lavenski Smith is presently Commissioner of the Arkansas Public Service Commission. He was an Associate Justice on the Arkansas Supreme Court from 1999-2000. Smith was Chairman of the Arkansas Public Service Commission from 1997-1999, and an Assistant Professor at John Brown University from 1994-1996. William Riley is a partner at Fitzgerald, Schorr, Barmetter & Brennan, in Omaha, Nebraska. He is an Adjunct Professor at the Creighton University School of Law, and a former clerk to U.S. Circuit Judge Donald Lay on the Eighth Circuit. ************************************************** Commentary: Court Cancelled By Thomas L. Jipping The Senate Judiciary Committee was to hold its first hearing Wednesday on President Bush's judicial nominees. Though 100 positions on the federal district and appeals courts stand vacant, the Democrat obstruction machine forced its cancellation. >From unprecedented demands for single-senator vetoes to filibuster threats and now blocking hearings, Senate Democrats are on a partisan mission to block Bush nominees. But guess who said the following: "I hope the [Judiciary] Committee will not delay in scheduling the additional hearings we need to hold to consider the fine men and women whom the president has nominated to fill these important [judicial] positions." Why, it was Sen. Patrick Leahy, top Judiciary Committee Democrat and now leader of the Democrat obstruction machine. Oh, and Leahy condemned delays in scheduling hearings in June 1998 when there were 72 judicial vacancies. This week he delayed a scheduled hearing though vacancies are 40 percent higher. Last July, Senator Leahy was shoveling coal into the furnace driving the confirmation train, saying "we cannot afford to stop or slow down the little progress we are making." That was then, with a Democrat president and just 60 vacancies. This is now, with a Republican president and 67 percent more vacancies, and he's pulling hard on the confirmation emergency brake to ensure no progress is made at all. Leahy is not alone on the wrecking crew. In October 1996, with 63 vacancies, Sen. Joseph Biden, D-Del., complained there had been too few nomination hearings that year and said, "We should have done more." Now with 100 vacancies, Biden is helping ensure the Senate will do even less. The silence in the so-called media is similarly deafening. In January 1998, for example, the San Antonio Express News said it was Judiciary Committee Chairman Orrin Hatch's "duty" to "hold hearings on and confirm or reject" judicial nominees. "Hatch and his fellow senators," the paper opined, "should schedule hearings immediately. Enough of simply stonewalling and political posturing." Now that vacancies are 20 percent higher and Hatch in fact scheduled a hearing that Democrats scuttled, we'll be listening for the Express News' outrage. And then there's the legal establishment. In a mid-1999 letter to Senate leaders, five former presidents of the American Bar Association complained that the Judiciary Committee had held no hearings so far that year. They warned that 65 vacancies and the failure to hold hearings would "without question threaten the efficient administration of justice." With 54 percent more vacancies today, and with Hatch attempting to hold nomination hearings, these bar leaders have so far been silent about the Democrat obstruction machine doing what they once condemned. Democrats and their leftist interest-group allies simply cannot defend such gaping hypocrisy and so they change the subject. Unfortunately, cries of "they did it too" rarely work for children and should never work for politicians. Nothing Republicans ever did comes close to the Democrat obstruction machine that's now just gearing up. Using the Congress Research Service's standards, for example, reveals that Democrats killed more Republican nominees by denying them hearings during 1987-1992 than Republicans have killed Democrat nominees since 1994. One of the nominees at the cancelled hearing this week would have been Jeffrey Sutton, who served as solicitor for the State of Ohio from 1995 to 1998 and is now a partner in the prestigious law firm of Jones, Day, Reavis and Pogue. Should his nomination ever go forward, Democrats and their leftist interest-group allies have chosen Mr. Sutton for the smear du jour and, as is their way, base the trashing of an entire legal career on just a single case. Mr. Sutton authored the brief and argued before the Supreme Court in a case titled University of Alabama v. Garrett. The legal issue was whether the Constitution allows state employees to sue their state employers for money damages under a federal statute, the Americans With Disabilities Act (ADA). The court had held for more than a century that the 11th Amendment protects states against such lawsuits. The few dozen examples of disability discrimination by state governments offered by the plaintiffs were not enough, the court said, to overcome this constitutional barrier. Predictably, those who want judges who prefer politics to the Constitution argue about judicial confirmations using, yes, politics rather than law. Here, Mr. Sutton's attackers simply ignore the legal issue and instead make up stories that play better in the media. Disability discrimination is a problem was not an issue; indeed, Mr. Sutton argued in his brief that the ADA "advances a commendable objective" and that the Constitution "places few if any limitations on the passage" of various anti-discrimination laws. The only issue was whether the Constitution permits a particular remedy for a particular violation of this particular statute. That's it. Mr. Sutton's attackers believe that judges control the law, not the other way around. To these folks and the judges they promote, statutes and constitutional provisions are whatever judges say they are. Results -- and, in particular, the political constituencies who benefit from those results -- are all that matter. President Bush has said he will appoint judges who instead have their priorities straight and know their job is to interpret the law rather than make it up, the obstruction machine is going full-throttle. Whether it's preventing hearings Democrats once demanded or inventing false issues with which to attack nominees, those who want to politicize the courts are in a full-court press. Thomas L. Jipping is Vice-President for Legal Policy at the Free Congress Foundation. This column is available on WorldNetDaily at http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22960 <http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22960> , where his commentaries appear on Thursdays. ************************************************** Visit JudicialSelection.org for: * Statements from Democrats and liberals on the need to confirm judges without resorting to ideological litmus tests (made when vacancies were higher than they are today), * Information on current nominees, and * Reports on judicial selection issues, including the Left's political strategy to block confirmations. www.judicialselection.org <http://www.judicialselection.org>
