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May 10, 2002 10:25 a.m. Schumer’s Conspiracy World The New York Democrat alleges a secret high-level GOP plot to sink Clinton judges.

ust what, precisely, did Democratic Sen. Charles Schumer hope to accomplish by holding a hearing entitled "Ghosts of Nominations Past: Setting the Record Straight"? Before the hearing, held Thursday in the Judiciary Committee's subcommittee on the courts, the best Republican guess was that Schumer wanted to divert attention from GOP events marking the one-year anniversary of President Bush's first judicial nominations. Eight of those first eleven nominees remain unconfirmed, and Republican senators held news conferences, made speeches on the Senate floor, and visited the White House to protest Democratic inaction.

After the hearing, however, Schumer's intentions were less clear. To "set the record straight," he heard testimony from four Clinton nominees who were never confirmed. "This isn't quite the Senate Judiciary Committee hearing that I once had longed for," said Kent Markus, who was nominated to a place on the Sixth Circuit Court of Appeals in February, 2000 but never received a hearing before the then-Republican-controlled committee. "To say that I was disappointed is an understatement," said Bonnie Campbell, who was nominated for a seat on the Eighth Circuit in March 2000 (she had a hearing, but never a vote). "In these fourteen months, I waited and waited," said Enrique Moreno, who was nominated to the Fifth Circuit in September, 1999 but never got a hearing. "Even with the passage of time, I find it difficult to reconcile my experience in the confirmation process with the basic notions of fair play, justice, and due process," said Jorge Rangel, who in July 1997 was nominated to the Fifth Circuit but never got a hearing.

The stories left Schumer in an angry funk. But rather than examining the circumstances of each nomination to see what went wrong, Schumer spent his time offering dark theories about the Republican opposition. The four nominees, and many others, he said, had been done in by a secret, high-level GOP conspiracy to derail Clinton judicial picks. The plot, Schumer alleged, originated at levels far above his colleague — and former committee chairman — Orrin Hatch. "We all know what happened," Schumer said. "Somehow, somewhere, in a higher place, a signal came down: STOP. And it did." Hatch and his fellow committee members, Schumer said, were just following orders.

But when one listened to the nominees' stories, the reasons for their not being confirmed seemed far more prosaic, at least in the context of the workings of the United States Senate. Two of the nominees, Moreno and Rangel, both from Texas, did not have the approval of their home-state senators, Phil Gramm and Kay Bailey Hutchison. It is a fact of life in the Senate that if a nominee is opposed by both home-state senators, that nominee will not, under almost any circumstances, be confirmed. It is, in fact, very difficult to be confirmed over the objection of just one home-state senator. In many cases, a president will take such opposition into account and decide beforehand not to make the nomination. With Moreno and Rangel, Bill Clinton went ahead anyway, and the nominations failed.

The two other nominees, Markus and Campbell, were each nominated in 2000, an election year when the pace of confirmation could normally be expected to slow down. It is not impossible to be confirmed in a presidential-election year, but one's odds become significantly lower. In addition, neither Markus nor Campbell had ever tried a case in court nor been a judge at any level, which did not suggest to senators already disinclined to confirm election-year nominees that their cases should be the exceptions.

And there's more. In Moreno's case, for example, a bipartisan group of 31 Texas lawyers set up by Gramm and Hutchison considered his nomination and came up with this vote: five in favor of confirmation, ten against, and 16 abstentions. It was not exactly something that Gramm, Hutchison, or other Republicans on the Judiciary Committee could read as a strong expression of support.

Perhaps all four nominees would have been good judges. But in the world of the Senate, there were real and understandable reasons for the failure of their nominations. Schumer's allegations aside, it is unlikely that any of the nominations died because of a high-level conspiracy — real-world politics would be a much better explanation.

Testifying for Republicans, C. Boyden Gray, the former Bush I White House counsel, stressed that hands-on political considerations have to be a part of the nominating process. "In all but a small handful of cases, the administration was able to secure the support or non-opposition of both home-state senators," Gray said of the Bush I nominating team. "Our determined efforts not to surprise home-state senators and to address any legitimate concerns in advance of nomination may have helped us avoid the multi-year delays experienced by some of President Clinton's nominees."

That sort of planning is going on in Bush II, as well. For example, the White House early on realized that it faces a problem nominating judges in California, where a nominee would need the support of Democratic Senators Dianne Feinstein and Barbara Boxer. The president even came up with a formal consultation committee to discuss lower-level district judges with both senators. He also decided not to nominate at least one candidate, Rep. Christopher Cox, because of home-state senator opposition.

Nevertheless, Bush has nominated five appeals-court nominees who have what are known as "blue slip" problems, meaning a home-state senator has not returned the blue piece of paper that indicates approval. North Carolina's John Edwards is holding up the nomination of Terrence Boyle to the Fourth Circuit. Boxer is holding up Carolyn Kuhl. Michigan's Democratic senators are holding up three nominees. It is likely that some of them, perhaps all of them, will not be confirmed. In all cases, Republicans don't like the situation, but they also know that the senators' actions are well within the rules. And not a single lawmaker would give up the "blue slip" privilege to save those nominations. What disturbs Republicans are the nominees — for example, the president's choices for the appeals court in the District of Columbia, which has no home-state senators and therefore no potential blue-slip problems — who are being held up for reasons that are not fully clear.

So in the end, the stories of Moreno, Rangel, Markus, and Campbell did little to confirm Schumer's "signal from on high" theory. After all the testimony was over, "Ghosts of Nominations Past" was less an explanation of legitimate grievances than a seminar on how the Senate works.