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a time of increasing tension between the Justice Department and
Senate Judiciary Committee chairman Patrick Leahy over the administration's
antiterrorist policies, the White House has entered into battle
on another front with a letter to the chairman from Vice President
Dick Cheney blasting the committee's record on confirming judges.
"As we
near the end of the first session of the 107th Congress," Cheney
writes in the letter dated December 4, "vacancies on the federal
bench are occurring at a faster pace than the confirmations of new
judges, and barely one in four of President Bush's nominees has
received a hearing and a vote."
"In recent
past administrations," Cheney continues, "well over 50
percent of judicial nominees have been confirmed in a new president's
first year. In 1989, President George H.W. Bush had 62 percent of
his nominees confirmed by the end of his first year. In 1993, President
Clinton had 57 percent confirmed. To date, President Bush has only
had 28 percent of his nominees confirmed."
Cheney tells
Leahy that "the current record with respect to circuit court
appointments is even worse." While Bush has nominated 28 candidates
to federal appeals courts, Cheney says, just five have been confirmed.
"Indeed, 75 percent of the president's circuit nominees are
still awaiting a hearing before your committee. This poor record
of confirmations is having a negative impact on a number of these
vital courts." Cheney mentions two nominees to the District
of Columbia circuit by name, Miguel Estrada and John Roberts, calling
them "outstanding, widely praised nominations" who have
not received a hearing before Leahy's committee.
"President
Bush has fulfilled his constitutional responsibility to the federal
judiciary," Cheney writes. "He announced his first eleven
nominees more than six months ago; eight of them have yet to receive
a hearing." Cheney concludes, "I urge your committee to
act so the Senate, in the remainder of this session and next year,
can likewise fulfill its constitutional responsibility and fill
the more than one hundred vacancies on the federal courts. It is
time for the Senate to act."
The letter
is the product of strategy sessions between Senate aides and the
lawyers in the White House counsel's office, both of them frustrated
by the slow pace of judicial confirmations. Although the letter
calls for immediate action, in reality the administration has no
hope for anything happening before January at the earliest. "It's
meant to lay down a marker for next year," says one Hill aide.
"Next year, you'll see a concerted effort from the Senate and
the White House."
As happy as
they are to receive high-profile help from the White House, some
in the GOP worry that the timing of Cheney's letter is not particularly
good. First, Leahy actually held a confirmation hearing on Wednesday,
considering the nominations of five candidates for the federal district
courts. Second, Leahy is engaged in a ongoing battle with the Justice
Department and Attorney General John Ashcroft over military tribunals,
detention of terrorist suspects and witnesses, waivers of attorney-client
privilege, and other issues in the war on terrorism. Cheney's letter
arrived a day before Ashcroft's much-anticipated appearance before
the Judiciary Committee, and some in the GOP worry that it might
divert attention from the anti-terrorism issue.
Still, Republicans
hope the letter will convince Leahy that the White House and Senate
GOP mean business. "As soon as we get back [from the year-end
holidays]," says the Republican aide, "they better start
moving some people or nothing will happen in the Senate. Or that's
the plan."
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