Bench Memos

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Leahy’s Demagoguery


At a Senate Judiciary Committee confirmation hearing yesterday, Chairman Patrick Leahy submitted a statement that, alas, reflects all too well the level of his intellectual integrity.  Consider:


1.  Leahy states that all five of the district-judge nominees at the hearing “were among those returned to the President without Senate action at the end of last Congress when Republican Senators objected to proceeding with certain of the President’s judicial nominees in September and December last year.”  This statement is clearly designed to give the trusting listener the impression that Republican senators were responsible for the fact that these nominees weren’t confirmed last year.  But no Republican senators objected to any of these nominees.  It was Democrats who decided to hold these nominees as hostages.


2.  Leahy states:  “With the five confirmations last week we have confirmed more of President Bush’s nominations in the 18 months I have served as Judiciary Committee Chairman than in the more than two years when Senator Hatch chaired the Committee with a Republican Senate majority or during the last Congress with a Republican Senate majority.”  This comparison obscures the critical fact that Democrats, including Leahy, resorted to unprecedented measures of obstruction against judicial nominations in the last two Congresses.  In other words, Leahy and his fellow Democrats, not the preceding Republican chairmen, are largely responsible for (and I’m sure claim credit with their supporters for) the low number of confirmations over the past four years.


3.  Leahy complains that President Bush “has nominated only 18 African-American judges to the federal bench, compared to 53 African-American judges appointed by President Clinton in his first six years in office.”  From the numbers I have handy, it would appear that President Bush’s 18 black nominees account for slightly more than 5% of his total judicial nominees.  Blacks account for about 4% of lawyers.  Moreover, only about one in ten blacks voted for President Bush (and I’d be surprised if the figures were substantially higher among black lawyers).  So it’s reasonable to conclude that among those lawyers who share the Administration’s judicial philosophy, the percentage of blacks is much lower than 4%—perhaps around 1%.  In short, for those who focus on such measurements (I don’t), blacks are certainly not “underrepresented” among the President’s judicial nominees.


Further, the treatment that Democrats accorded conservative black nominees like Janice Rogers Brown and Jerome Holmes would be enough to deter other qualified blacks from even thinking about becoming judges. 


4.  Leahy also complains that President Bush has “nominated only 2 Asian-Pacific American candidates.”  I haven’t found statistics readily available, but the fact that President Clinton had a grand total of five such nominees would indicate that the pool of available candidates is quite small (even before one makes the sort of adjustments I make in point 3).  Indeed, Leahy resorts to the ridiculous suggestion that Yale law school dean Harold Koh (a prominent and highly partisan critic of the Administration’s national-security policies) and Berkeley law professor Goodwin Liu (who testified against Justice Alito’s confirmation) would be plausible nominees by this President.


Here and elsewhere, Leahy has amply shown that he simply can’t be trusted.

Tags: Whelan


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