April
30, 2002 10:00 a.m. GOP
Malaise
Republicans
despair of forcing Patrick Leahy to speed up judicial confirmations.
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week will mark a key time in the Senate's ongoing war over judicial confirmations.
Thursday, May 9 is the one-year anniversary of President Bush's announcement
of his first nominees for the federal bench; on that day, the president
nominated eleven judges for places on the circuit courts of appeal. Since
then, just three have been confirmed — and two of those were Democrats
whom Bush nominated in a conciliatory gesture. Of the eight who have not
yet been confirmed, none has had a hearing before the Democratic-controlled
Senate Judiciary Committee.
Although their
plans for May 9 are not yet set, Republicans on Capitol Hill will likely
hold a series of media events to protest committee chairman Patrick Leahy's
inaction on dozens of Bush nominees. But behind the angry words, there is
a sense of malaise among some in the GOP who had hoped that Leahy's decision
to kill the appeals-court nomination of Charles Pickering would spark a
public reaction against committee Democrats.
"The only thing
that will make them act is if they feel that it is hurting them politically,"
says one key Republican aide. "The Washington Post editorials
[criticizing Leahy's slow-motion confirmation strategy] have been helpful,
but it's not something that has reached the public. We're pretty much
at their mercy."
That's not likely
to change anytime soon — at least as long as Democrats control the
Senate and Leahy maintains his current low profile. Since the Pickering
fight, the chairman and his fellow Democrats have shown no inclination
to kill any more nominations, but at the same time they have shown no
interest in considering some of the nominees the White House would most
like to see confirmed — conservatives Miguel Estrada, John Roberts,
Michael McConnell, and several others. For wary Republicans, the quiet
in the Democratic ranks is deafening. "You never know what they're
planning," says one GOP staffer. "When it's quiet you wonder
what's going on."
Even though they
are in an essentially reactive position, Republicans have scored one small
victory. Last week, all 49 GOP senators signed a letter to Leahy asking
him to explain his policy regarding so-called "blue slips,"
the documents by which senators can express disapproval of judicial nominees
who come from their home states. "A clear statement of your blue
slip policy is essential because it appears that some senators may be
exercising an unprecedented and troubling power to veto via the 'blue
slip' not only nominees from their home state, but nominees from neighboring
states as well," the Republican senators wrote.
The letter referred
to a situation in which Michigan Democrat Carl Levin, who has been engaged
in a long-running dispute with Republicans over nominations to the Sixth
Circuit Court of Appeals, is said to have opposed Bush nominees to the
Sixth Circuit even when they came far from his home state (the circuit
covers a wide geographic area, from Michigan to Tennessee). When President
Clinton nominated Levin's sister-in-law to a place on the court a few
years ago, the choice was opposed by the other senator from Michigan,
Spencer Abraham. Now, Levin has been against all Bush nominees
to the Sixth Circuit, whether they come from Michigan or not.
"We know of
no instance in which a senator has been vested with veto power before
the Judiciary Committee over nominees from states in the same circuit
as his or home state," the GOP senators wrote. The letter had been
circulating for weeks — it took a while to get everyone's signature
— and was delivered on April 24. As it was making the rounds, Leahy
added a Sixth Circuit nominee, Julia Gibbons, to the committee's hearing
schedule, and she was approved on April 25.
Republicans see two
ways of looking at Leahy's action. On one hand, it undercut the GOP argument
and blunted the impact of the letter. On the other hand, the letter got
a hearing for a Sixth Circuit nominee. In the latter view, that's a powerful
argument to keep up pressure on the chairman. "If we're smart, this
will encourage us to hit harder and faster," says one GOP aide.
But that was just
one case. Now, many Republicans fear there will be few high-level confirmations
for the rest of the year. And as odd as it may seem at this fairly early
date, lawmakers worry that time for action this year is running out. The
Senate will work the months of May, June, and most of July. It will be
in recess in August, at work during some of September, and fully engaged
with the election after that. In all, there are about 12 weeks of work
left in the year. At Leahy's current pace, it is very easy to imagine
many of the president's appeals-court nominations being delayed well into
2003.
So look for protests
and sharp words on May 9. But look for something from Leahy, too. Some
in the GOP suspect that Leahy will observe the day by passing through
committee a number of lower-level and non-controversial nominees. He might
then say that he did not have time to pay much attention to Republican
protests because he was too busy confirming Bush nominees. And in the
meantime, the judges of May 9 will remain in limbo.
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week will mark a key time in the Senate's ongoing war over judicial confirmations.
Thursday, May 9 is the one-year anniversary of President Bush's announcement
of his first nominees for the federal bench; on that day, the president
nominated eleven judges for places on the circuit courts of appeal. Since
then, just three have been confirmed — and two of those were Democrats
whom Bush nominated in a conciliatory gesture. Of the eight who have not
yet been confirmed, none has had a hearing before the Democratic-controlled
Senate Judiciary Committee.
