Politics & Policy

To My Democratic Friends: Be Judicious

Senate Democrats are failing to meet both historical and their own standards.

The Constitution gives to the president authority to nominate and appoint federal judges. The Senate provides advice about whether the president should appoint his judicial nominees by giving or withholding consent through up or down votes. That is what the Constitution assigns us to do. That is what Americans expect the Senate to do. That is what the Senate is failing to do.

For the record, I have voted against only five of the more than 1,500 nominees to life-tenured judicial positions that the full Senate has considered since I was first elected. Some Democratic senators, including those with far less seniority, have voted against more than three times as many nominees of the current president alone. I have strongly opposed all filibusters against judicial nominees, both Democratic and Republican. I have not taken a partisan approach to judicial confirmations.

But it does not take a partisan standard to see that that neither the Judiciary Committee nor the full Senate is doing its judicial-confirmation duty. At both stages in the confirmation process, the Judiciary Committee and the Senate floor, Democrats are failing to meet both historical and their own standards.

Democratic leaders are fond of saying that they will not treat President Bush’s nominees as the Republicans treated President Clinton’s nominees. Indeed, they are not. In the last ten months, for example, the Judiciary Committee has held a hearing on just three appeals-court nominees. During the same period under President Clinton, the Judiciary Committee held a hearing on 11 nominees.

When I chaired the Judiciary Committee during the Clinton presidency, we held no fewer than ten hearings that included more than one appeals court nominee. Democrats have not held a single one when they controlled this body under President Bush.

When I chaired the Judiciary Committee, Democrats complained every time a nomination hearing did not include an appeals-court nominee. Under Democratic leadership, the Judiciary Committee has held nearly a dozen hearings on President Bush’s judicial picks, the latest just last month, that did not include an appeals-court nominee.

The picture is the same when we look past the Judiciary Committee to the Senate floor. Under Presidents Clinton, Bush 41, and Reagan, the opposition-controlled Senate confirmed an average of 75 district-court and 17 appeals-court nominees during the president’s final two years in office. So far in the 110th Congress, we have confirmed 31 district-court and just six appeals-court nominees for President Bush. Simply meeting the historical average will require confirming 44 district-court and 11 appeals-court nominees in the next several months. If anyone believes that will happen, I have some ocean-front property in Utah’s desert I would like to sell him.

Should the Senate do the unexpected this year, President Bush would still leave office with a substantially smaller impact on the federal bench than his predecessor, because President Bush’s 295 judicial appointments to date already lag far beyond President Clinton’s 346 tally. So much for the Democrats’ yarn about a supposed blockade against Clinton nominees.

When Democrats were in the minority during President Clinton’s last year in office, they repeatedly insisted that 1992 provided the proper yardstick for measuring confirmation progress. The current Judiciary Committee chairman said so in at least six different speeches between March and November of 2000. Here is a typical example: “I say let us compare 1992, in which there was a Democratic majority in the Senate and a Republican President. We confirmed 11 court of appeals court nominees. . . . and 66 judges in all. In fact, we went out in October of that year. We were having hearings in September. We were having people confirmed in October.”

The 1992 standard seems even more appropriate today. Today, as in 1992, a President Bush is in the White House. Today, as in 1992, Democrats control the Senate. Today, all Democrats have to do is meet their own standard. They are failing to do so.

Democrats try to change the subject by pointing out that the White House has not made a nomination for every judicial vacancy. True, but beside the point. Not having nominees for vacancies X, Y, and Z is no excuse for failing to hold hearings and votes on nominees to vacancies A, B, and C.

Democrats also cite the so-called Thurmond Rule, supposedly to justify grinding the confirmation process to an early halt in this presidential-election year. (The Thurmond Rule is neither a rule nor attributable to the late Sen. Strom Thurmond.) Democrats had a different view when Republicans ran the Senate under President Clinton. As one Democratic leader put it in July 2000: “We cannot afford to follow the ‘Thurmond Rule’ and stop acting on these nominees now in anticipation of the presidential election in November.” That was then.

Then there is the cute but misleading phrase pocket filibuster, invented by the Democratic sound-bite machine to suggest that Republicans blocked the 60 or so Clinton nominees who were not eventually confirmed. Democrats know that some nominees of every president do not make it all the way to confirmation for a host of reasons. But why let the facts get in the way of a good sound bite? As the late Sen. Daniel Patrick Moynihan used to say, you are entitled to your own opinion but not your own facts.

Among the 60 unconfirmed Clinton nominees that Democrats blame on Republicans were many that President Clinton himself withdrew or chose not to re-nominate in a subsequent Congress. They include those who needed further investigation and also those nominated too late in a congressional session to be processed. They include others who did not have the support of their home-state senators. The current chairman claims that he is not responsible when Bush nominees lacking support from their home-state senators do not get hearings. When he follows this policy, he blames it on senatorial courtesy. When Republicans follow this policy, he calls it a pocket filibuster. Sorting out the real reasons those Clinton nominees were not confirmed exposes a Democratic sound bite with a margin of error of about 500 percent.

In the last two months, the percentage of Americans who disapprove of Congress stood at 70 percent, up from 52 percent in January and February of 2007. Even in an election year, the American people expect and the judiciary needs the Senate to fulfill its constitutional advice-and-consent role in the judicial-appointment process.

– Sen. Orrin G. Hatch, Utah Republican, has served on the Senate Judiciary Committee since 1977 and chaired the committee during the 104th-106th and the 108th Congresses.

Orrin Hatch — Orrin G. Hatch is the chairman emeritus of the Orrin G. Hatch Foundation. A Utah Republican, he served on the Senate Judiciary Committee from 1977–2019.


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