Politics & Policy

What’s Behind the New Fight Over Judges

Republicans look to pick their battles--very carefully.

Two key Senate Republican leadership staff members held a conference call last week with a small group of reporters. The purpose was to discuss Majority Leader Bill Frist’s plan to restart the drive to win confirmation for several of President Bush’s federal appeals-court nominees. They announced that the work would begin with Brett Kavanaugh, who was nominated three years ago for a place on the U.S. Court of Appeals for the District of Columbia but never received a vote in either the Senate Judiciary Committee or the full Senate.

In the course of making the case for the new confirmation push, one of the staffers emphasized that the Bush White House and Republicans in the Senate have already had a great deal of success. The president has had 235 judicial nominees confirmed, the official said, for a confirmation rate of 87 percent–”the highest confirmation rate of any president since Reagan.”

That’s something you don’t hear much from Republicans. Instead, the aide’s comments resembled a number of statements made by Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee who, rather than using the statistics to call for more confirmations, likes to read them to show that Democrats have been quite accommodating in their treatment of Bush nominees, confirming most of them and blocking just a small number of “extremists.”

That’s surely not the message that Republicans want to send. But now, as they start this new campaign, they have to concede the fact that they have already gotten most of what they wanted.

Imagine that, a year and a half ago, you said this to a Republican senator: “Democrats will cave and you’ll get William Pryor confirmed. “You’ll get Janice Rogers Brown. You’ll get Priscilla Owen. And oh–by the way–you’ll also get John Roberts and Samuel Alito on the Supreme Court.”

They would have thought that was a big, big win.

But there were nominees left on the side of the action, their situation unaffected by the so-called Gang of 14′s negotiations–among them Kavanaugh, Terrence Boyle, William Myers, William Haynes, and Henry Saad. What about them?

Each situation is different. Democrats have made a variety of complaints about Kavanaugh, but they can’t stand him for one basic reason: He worked for independent counsel Kenneth Starr. And that is not enough for Democrats to block him. Indeed, Senate sources now suggest that Kavanaugh is pretty much a “done deal.” Once Judiciary Committee chairman Arlen Specter agreed to give Democrats another shot at him–a second hearing, set for next Tuesday–members of the Gang of 14 have made clear that there will be no filibuster. So Kavanaugh, who has the invaluable advantage of Specter’s strong support, is most likely in.

In light of that, it appears that what Democrats really wanted in the Kavanaugh case was an opportunity to vent. Kavanaugh has worked in the Bush White House counsel’s office and is now the staff secretary of the White House. Democrats believe–”hope” would be a more accurate word–that there might be some evidence that Kavanaugh was involved with making policy on, say, the treatment of prisoners or the surveillance of suspects in the war on terror. There apparently is no such evidence, but Kavanaugh’s hearing will give Democrats a chance to talk–and talk and talk and talk–about a few of their favorite subjects. “Tuesday will be the way for them to get the following words in the paper: torture, abuse of power, illegal wiretaps,” says one Senate aide. And then Kavanaugh will move on to confirmation.

The situation is not as encouraging for some of the other nominees. Haynes is associated with the treatment of prisoners in the war on terror, a topic Republicans aren’t interested in re-fighting this year. “I’m not sure that he will be brought up, especially before the election,” says the Senate aide. Boyle has been waiting a long time, mostly because he is associated with former Sen. Jesse Helms and a lot of bad blood concerning the Fourth Circuit Court of Appeals. Now there are allegations he might have had some conflicts of interest, and sorting through those will take still longer. And Myers has been involved in enormous fights between Democrats and the administration over issues at the Interior Department, where he worked.

Finally, Saad had no substantive objections against him. He was just taken hostage by Michigan senators Carl Levin and Debbie Stabenow in an ugly dispute over the Sixth Circuit Court of Appeals. After years of waiting, he withdrew his nomination, joining Miguel Estrada and Carolyn Kuhl as nominees whose chances were killed by the Democratic blockade.

But in the end, there are those numbers: 235, 87 percent, “the highest confirmation rate of any president since Reagan.” Although it took bitter fighting and several elections to do it, the Bush White House has won most of its battles over judicial nominations. It will win a few more, like Kavanaugh, but there will be some nominees it just doesn’t get. And, without a Supreme Court nomination to attract national attention, it will become more difficult to get the GOP base energized about a dwindling number of nominees.

The factor that could change the dynamic in the Senate is if Democrats choose to filibuster some nominations. Many observers don’t expect that to happen, at least with the present group of nominees. The reason is not so much that Democrats aren’t willing to filibuster but that there are some battles Republicans don’t want to fight. “I do not want to place the Senate in the position where we were a year ago this time when were having filibusters on the Democratic side and the Republican side was posing the constitutional, or nuclear option,” Specter said this week. “I want to avoid that.” One way of avoiding that is to make a deal, as apparently has been done with Kavanaugh. Another way is for Republicans simply to leave some nominees, like Myers and Haynes, in the lurch.

After the conference call, National Review Online asked the Senate leadership aide to expand a little on the confirmation rate. Doesn’t it show that Republicans have been successful? This is what he said in an e-mail response:

We are simply committed to making the judicial nomination process work as intended–with every qualified nominee with majority support getting an up or down vote. The high confirmation rate reflects the quality of the judges nominated by the President and the commitment of the Majority Leader and his colleagues to run the nominations process smoothly and fairly. Using the confirmation rate to justify blocking an individual nominee, without considering the nominee’s experience, judicial philosophy and qualifications, amounts to imposing an unfair and inappropriate political litmus test on the nomination.

It’s not really a litmus test–a quota would be a more accurate way to describe it. But in general, the Republican aide is right. It’s just that the issue if going to be harder and harder to fight about.

Byron York, NR’s White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.

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