“Thomasing” Bush’s Judges
Democrats move beyond Borking.

July 27, 2001 12:40 p.m.

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.