Weapons of Mass Distraction

Article excerpt

That is what a clever old-style Berkeley radical friend of mine calls the arrows that have flown in Washington for the past year. His comment made me reach back in time, back to the many serious debates that demanded attention before we were all distracted by the name Monica Lewinsky.

The most pressing of these involves the stalled judicial-appointments process. For all the speculation about how impeachment will shape Bill Clinton's place in the history books, the more immediate and tangibly enduring legacy of any President is his impact on the judiciary. Indeed, in summarizing the House managers' case to the Senate, Henry Hyde made mention of the power of the President to appoint judges--Supreme Court Justices, federal court judges at both the appellate and district court levels--as well as the executive's power to appoint attorneys general and prosecutors, including special prosecutors. President Roosevelt's appointments to the Supreme Court are perhaps the most-often cited example of the importance and influence of such power. Another well-known example is the combined impact of Presidents Reagan and Bush; by 1993, when Clinton came into office, their appointees made up more than two-thirds of the hundreds of judges on the federal bench.

In the 1997 volume of Judicature, political scientists Sheldon Goldman and Elliott Slotnick summarized Clinton's appointment record up to that point. From 1993 to 1994, he appointed 107 judges, with a 90 percent confirmation rate by the 103d Congress. From 1994 to 1996, under the Republican-dominated 104th Congress, the confirmation rate dropped to 70 percent; only sixty-two judges were appointed, and delays in the Senate increased measurably. Bob Dole announced his candidacy for President and, according to Goldman and Slotnick, "attempted to make judgeships a major theme of his ... campaign." Dole denounced what he called Clinton's "all-star team of liberal leniency [that] could lock in liberal judicial activism for the next generation."

By the advent of the 105th Congress, the appointment process had slowed to a trickle. To be sure, part of the blame for this can be placed on the White House's extraordinary slowness in putting forward names. There has been much criticism of what, by all accounts, is a byzantine internal-selection process, as well as an overly conciliatory consultation--almost a pre-approval process--with Orrin Hatch and the Judiciary Committee. And as in so many other areas, Clinton has sometimes been less than supportive of his own nominees, as in his startling failure to back his old friend, Georgetown law professor Peter Edelman. But, for all that, the degree of Senate delay in dealing with those who have been put forward is historically unprecedented.

In November 1997, Anthony Lewis lamented the Senate's refusal to act on Clinton's judicial nominees in anything resembling a timely fashion and expressed his concern that Congress seemed to have capitulated to the most intemperate voices in the Republican Party. Lewis singled out the activities of Thomas Jipping, director of the Judicial Selection Monitoring Project, "an extreme-right organization that has been behind many of the attacks on recent judicial nominees. …