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 here's
a new word going around among Republicans on the Senate Judiciary
Committee: "Thomasing."
Named after the confirmation ordeal of Supreme Court Justice Clarence
Thomas, it's not as catchy as the more widely used '"Borking," but
it better describes a new battle that's going on over how the committee
deals with potentially embarrassing information in the backgrounds
of Bush White House judicial nominees.
In the past, when candidates for the federal bench filled out extensive
personal history reports for the committee and the FBI, they were
asked, among other things, about drug use and any arrests or convictions
in their past. Their answers were confidential; the information
was on forms that only senators, as well as a small number staff
members from each party — each with a top-secret clearance
— were allowed to see. Keeping that information secret allowed
the committee to determine whether it was relevant to the nomination
in a way that did not embarrass the nominee.
Now, committee chairman Patrick Leahy and fellow Democrats want
to change the rules. Under their proposal, drug use and arrest/conviction
information — along with information about any political contributions
or political volunteer work the nominee might have done — will
be contained in forms that would be available to a far greater number
of committee staff members.
It's a situation guaranteed to produce leaks — which, should
they occur, might well damage some of the president's nominees.
"This is Thomasing, not Borking," says one Republican aide, referring
to the difference between the mostly ideological arguments used
in 1987 to sink the Supreme Court nomination of Robert Bork and
the barrage of allegations — pornography consumption, sexual
harassment — used against Thomas. "Every single nominee has
allegations in their record that the committee investigates on a
bipartisan basis. To throw that out in the open would become a real
problem."
Privately, some in the GOP suggest that Bill Clinton's judicial
nominees might have had a few embarrassing issues in their past,
things that Judiciary Committee chairman Orrin Hatch and his fellow
Republicans kept private. But it's too late to kvetch about that
now; Republicans didn't think to change the confirmation ground
rules when they had the chance.
For his part, Leahy maintains that he is simply trying to update
the 10-year-old questionnaire and make it simpler. "He isn't asking
for anything outrageous," says a Democratic aide. "The confidential
material will stay confidential."
Both sides have been engaged in intensive negotiations for the past
several days, but so far there has been no progress on the hot-button
issues. Will Leahy ultimately win? The short answer is yes. Although
there has been a history of compromises between the majority and
minority on the committee, in the end, says one staffer, "Leahy
can do whatever he wants as chairman."
Meanwhile, the number of vacancies on the federal courts remains
unchanged. On Tuesday, the committee held a confirmation hearing
for another Bush nominee, William Riley, nominated to the 8th Circuit
Court of Appeals. If, as expected, Riley is approved by the full
committee before the August recess, he will be the fourth Bush judge
— two circuit court, two district court — to pass muster
so far. Which means that when September arrives, it is likely that
107 vacancies will remain on the federal bench.
Republicans compare that record to Leahy's statements in July of
last year, when he said he was concerned about what was widely known
as a "vacancy crisis" on the federal courts. "We should be considering
20 to 30 more judges this year, including at least another half
dozen for the Court of Appeals," Leahy said in mid-July 2000. "We
cannot afford to…stop acting on these nominees now in anticipation
of the presidential election in November. We must use all the time
until adjournment to remedy the vacancies that have been perpetuated
on the courts to the detriment of the American people and the administration
of justice." At the time Leahy spoke, there were 63 vacancies on
the federal bench.
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