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.
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