One Year Later, Little Senate Action On Bush Nominees

By Jeff Johnson | July 7, 2008 | 8:28 PM EDT

Capitol Hill ( - One year after President Bush announced his first round of nominations to the federal courts, the Senate has still acted on only three of the original 11 nominees.

Democrats on the Senate Judiciary Committee claim President Bush is responsible for the slow pace of confirmations.

"Send us moderate, non-ideological judges and we'll confirm them - quickly," charged Sen. Charles Schumer (D-N.Y.) at a subcommittee hearing he organized entitled "Ghosts of Nominations Past: Setting the Record Straight."

Schumer also blamed Senate Republicans for the existing vacancies on the federal bench.

"We have so many vacancies on the federal courts precisely because the Republican-controlled Judiciary Committee failed to confirm qualified, ideologically moderate Clinton nominees," he argued. "They wanted to make sure that if they won the presidential election, they'd be able to put their ideologically-conservative nominees on the courts."

Sen. Orrin Hatch (R-Utah) is currently the ranking minority member of the Judiciary Committee, but served as its chairman during the time Schumer claims Republicans were intentionally stalling Clinton nominees.

"True, there were individual instances where a handful of nominees did not move," he acknowledged, "but it was nothing like the systematic and calculated stalling tactics being employed by this Democrat Senate."

Hatch disputes Schumer's characterization that Clinton's nominees were "ideologically moderate."

"The Clinton nominees we confirmed were no 'mainstream moderates' as some have led us to believe," he said, listing as examples Judges Marcia Berzon, Richard Paez, Margaret Morrow, and Willy Fletcher.

"Not a single one of those would be characterized, by any measure of the imagination, as nominees with political ideology 'within the moderate mainstream,'" Hatch added, "but they were confirmed."

He says records of nominations and confirmations during the terms of presidents Reagan, George H.W. Bush, Clinton, and George W. Bush support his claims of "stalling" by the current Senate Democrat leadership.

While 382 of Reagan's nominees were approved during his eight years in office, the Senate was under Republican control for six of those years. Clinton received 377 approvals for judicial nominees, but the Senate was under Democrat's control for only two of his eight years in office.

Additionally, Clinton saw 97 of his first 100 judicial nominees approved in an average of 93 days per nominee. Reagan and George H.W. Bush enjoyed similar results. But George W. Bush, on the other hand has seen only 52 percent of his first 100 nominees receive approval over an average of 150 days per nominee.

Hatch also says Schumer's claim that Republicans intentionally kept seats vacant in the hope of retaking the White House while Democrats had filled almost all vacancies is, "Arthur Andersen accounting."

"Get ready for the truth," he said looking in Schumer's direction. "There were 41 such [vacancies], let me repeat, 41, which is 13 less than the 54 ... under [the] Democrat-controlled Senate in 1992, at the end of the first Bush administration."

Sen. Jeff Sessions (R-Ala.), one of the Republican judicial nominees denied confirmation by Democrats when they previously controlled the Senate, questions Schumer's contention that all of the unconfirmed Clinton nominees were "well qualified."

"Neither one of you, at the time of your nomination, had actually tried a jury trial, had you?" Sessions asked Kent Markus and Bonnie Campbell, two of the "Ghosts of Nominations Past" proffered by Schumer.

Both of the attorneys - who had worked on programs some considered controversial under then Attorney General Janet Reno - admitted that they had no jury trial experience prior to being nominated.

"I think it was a lack in your record," Sessions continued. "You came in from a political process, at the end of an administration, and things may not have moved as fast as you felt like you were entitled to have them move."

Schumer argued that Clinton appointees such as Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer are "fairly moderate," but characterized Justices Clarence Thomas and Antonin Scalia as "way out of the mainstream."

"We're not fools here. We know what the administration's plan has been here. They've stated it," he charged. "And that is to 'recapture' the judiciary and move it way over [to the right]. Now you may say that's mainstream [but] I don't think many people do."

But Sen. Jon Kyl (R-Ariz.) challenged both Schumer's definition and his application of those terms.

"I suspect that neither ... Senator Schumer ... nor myself can objectively define what is a conservative ideologue as well, perhaps, as the president who represents all of the country, who was elected by all of the citizens of the country not just the citizens of a particular state with a particular relative ideology; a president who now has an approval rating of over 70 percent," Kyl argued.

"The nominees that President Bush has [chosen], who have been languishing now for over a year without a hearing, have received unanimous, well-qualified recommendations from the American Bar Association, your 'gold standard,'" he concluded, "so there can be no reason for these nominees not having a hearing."

A variety of conservative groups have condemned Senate Judiciary Committee Democrats for their attempts to keep pro-life conservatives from being appointed to the federal bench.

Richard Lessner, executive director of American Renewal, says the battle over judicial nominees will determine "the future of self-government in America."

"Liberals are fanatically opposed to the Bush nominees because the Left has exploited the courts to impose its radical political agenda on the American people," he said. "It's time we had judges with some degree of humility, instead of black-robed, booted, and spurred tyrants hostile to the right of the people to govern themselves."

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