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are plenty of signs that pre-September 11 conflicts are re-emerging
on Capitol Hill, but none is stronger than the renewed fighting
that will likely erupt next week over the issue of President Bush's
judicial nominations.
Last week Republicans
sent Senate Judiciary Committee chairman Patrick Leahy a letter
saying that "once the anti-terrorism legislation is completed,
there is no higher priority than filling the vacancies that exist
in our federal courts." The letter, signed by every Republican
on the Judiciary Committee, reminds Leahy that the Senate has confirmed
just six of the nearly 50 judicial nominees the president has sent
to the Hill.
The GOP senators
also stress that Majority Leader Tom Daschle made a commitment to
Minority Leader Trent Lott in late September that the Senate would
act on the more than three dozen nominees who had been sent to the
Senate by the time of the August recess. And the Republicans use
Leahy's own words to press the point that there are now 107 vacancies
on the federal bench. "When Bill Clinton was president and
there were fewer than 85 vacancies," the letter says, "you
took the position that 'any week in which the Senate does not confirm
three judges is a week in which the Senate is failing to address
the vacancy crisis.'" The GOP senators offer to help Leahy
schedule more hearings and executive sessions to consider nominations
more quickly.
Also last week,
Leahy received a stern letter from White House counsel Alberto Gonzales
about an issue that threatens to become a major point of contention
in coming days. It concerns the questionnaire that the Judiciary
Committee requires each judicial nominee to complete. Leahy wants
to change the questionnaire to include a number of queries that
were previously handled only by the FBI during its extensive background
check of nominees. For example, the new questionnaire asks candidates
to list "prior use, possession, purchase or distribution of
any illegal substance."
In the past,
that information was contained in the FBI report on a candidate
— a report that was closely guarded and available only to senators
and a few top staff members. The questionnaire will be available
to more staffers, and Republicans fear that will mean potentially
embarrassing information about nominees will be more likely to leak
than under the old system. In his letter, Gonzales urges Leahy to
"consider that the FBI report is the proper vehicle, as it
historically has been, to inform senators regarding nominees' sensitive
personal information."
Gonzales is
also concerned about a section of the questionnaire that asks nominees
to disclose prior arrests or convictions, as well as another section
that asks nominees whether they have ever been "a party in
any civil or administrative proceeding" — both questions
that were handled by the FBI under the old system. "Because
such information may include divorce or other private or family-related
proceedings, it too may be highly sensitive for nominees and therefore
is more appropriately disclosed in the confidential section [of
the FBI report]," Gonzales writes.
Finally, Gonzales
objects to the questionnaire's requirement that nominees "itemize
all political contributions." "It is unclear how a nominee's
history of political giving would bear on that nominee's fitness
for office," Gonzales writes. "By asking this question,
the questionnaire creates the invidious impression that such contributions
are of great relevance in assessing a nominee's fitness for judicial
office."
The conflict
over nominations is likely to break into public view next week as
Republicans debate strategies to pressure Democrats to hold more
confirmation proceedings. The most potent weapon available to the
GOP is the minority's power to hold up appropriations bills. An
aide to one Republican senator says of his boss, "He firmly
believes that's our only point of leverage on the Democrats. We
need to get something every time we move an appropriations bill."
Such a strategy,
if adopted by the Republican leadership, could paralyze the Senate
and open the GOP up to charges of divisiveness and breaking the
bipartisan spirit that has prevailed since the terrorist attacks
of September 11. But some frustrated Republicans are ready to go
ahead. "Is it breaking the bipartisan spirit?" asks one
aide. "The question is what is more divisive, shutting down
the confirmation process or complaining about the shutdown of the
confirmation process."
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