July 16, 2004, 10:00 a.m.
Partisanship Is Their Principle
Senate Dems on judges — then and now.

By Edwin Meese III

The drawn-out fight waged on Capitol Hill over many of President Bush's judicial nominees goes beyond the usual charges of rank partisanship. It comes down to a question that concerns our very form of government. Simply put: Will we have an independent federal judiciary — as the Constitution provides — or not?

Certain senators have made every effort to deprive President Bush of his power to appoint judges with the advice and consent of the Senate. Although a clear majority supports President Bush's nominees (including several fair-minded Democrats), these senators have used arcane rules to filibuster his candidates. They know that if the full Senate voted, Bush's nominees would be confirmed and that they would follow the Constitution. The president's opponents have simply hijacked the process, hoping to stall until Bush leaves office or the nominees give up.

According to the Republican Policy Committee, "The Senate has logged more cloture votes [votes trying to end a filibuster] during the 108th Congress than through all previous Congresses combined." Never before in history has the Senate used a filibuster to block the confirmation of a nominee that enjoyed majority support. (The potential elevation of Justice Abe Fortas to Chief Justice of the Supreme Court doesn't count; his nomination was withdrawn when a temporary, bi-partisan filibuster proved he lacked majority support.)

Yet last year, for the first time ever, a highly qualified nominee with no barrier but partisan politics to his confirmation — Miguel Estrada — withdrew after two years of obstruction. The Democrats have continued to block other women and minorities that President Bush has tried to elevate, including Priscilla Owen, Janice Brown, and Carolyn Kuhl. As many as a dozen lower-court nominees have been stalled so far with an actual or threatened filibuster, some for as long as three years.

This obstructionism is breathtaking in its hypocrisy. Small wonder that President Bush has launched a renewed campaign this week to highlight the judges that these Democrats appear determined to leave out in the cold.

Even Supreme Court Justice Clarence Thomas's nomination wasn't subjected to such extreme tactics. Indeed, during Justice Thomas's confirmation hearings, then-Judiciary Committee Chairman Joseph Biden opposed a filibuster, even in the face of pressure from left-wing groups to do so. Future Judiciary Committee Chairman Patrick Leahy "declared himself 'totally opposed' to a filibuster," the Washington Post reported, and favored an up-or-down vote on Justice Thomas.

Worse, the Democrats' filibuster runs directly counter to statements made by their own leading members during the Clinton administration. The following statements by members of the Judiciary Committee and the ranking Democrat highlight this about-face:

Senator Leahy (D., Vt.): "I have said on the floor, although we are different parties, I have agreed with Gov. George Bush, who has said that in the Senate a nominee ought to get a [floor] vote, up or down, within 60 days." (Congressional Record, Oct. 11, 2000)

Senator Biden, (D., Del.): "But I also respectfully suggest that everyone who is nominated ought to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor." (Congressional Record, March 19, 1997)

Sen. Edward Kennedy (D., Mass.): "We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don't like them, vote against them. But give them a vote." (Congressional Record, Feb. 3, 1998)

Sen. Dianne Feinstein (D., Calif.): "A nominee is entitled to a vote. Vote them up; vote them down.... If we don't like them, we can vote against them. That is the honest thing to do. If there are things in their background, in their abilities that don't pass muster, vote no." (Congressional Record, Sept. 16, 1999)

Sen. Tom Daschle (D., S.D.): "As Chief Justice Rehnquist has recognized: 'The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down.' An up-or-down vote, that is all we ask...." (Congressional Record, Oct. 5, 1999)

Now that a Republican president's nominees are in question, these same Senate Democrats act as though these principles no longer apply. By filibustering the confirmation of Bush's nominees, they are denying these individuals the very up-or-down vote on the floor to which they believed every one of President Clinton's nominees was entitled.

Plainly, these lawmakers are not interested in an even-handed application of the rules. They are merely manipulating the verbiage of principle to partisan advantage. Such unprecedented shenanigans politicize the judiciary — contrary to the very purpose of life appointments, which is to insulate federal judges from politics. Americans shouldn't tolerate this hypocrisy.

— Edwin Meese III, a former U.S. attorney general, is the Ronald Reagan Distinguished Fellow in Public Policy at the Heritage Foundation and chairman of its Center for Legal and Judicial Studies.

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