Magazine article The American Prospect

Injudicious: The Senate Judiciary Committee Has Long Been Partisan, but with Recess Appointments and the GOP Stealing Computer Files, It's Now Also Rigged

Magazine article The American Prospect

Injudicious: The Senate Judiciary Committee Has Long Been Partisan, but with Recess Appointments and the GOP Stealing Computer Files, It's Now Also Rigged

Article excerpt

WITH CIVIL RIGHTS, REPRODUCTIVE rights, environmental protections, workers' rights, and yes, even the presidency (see Bush v. Gore) at stake, it's no surprise that the Senate Committee on the Judiciary is a hot spot for politics--not the handshaking politics of the campaign trail but a passionate, big-picture politics where senators duke it out over the ideological balance of our nation's courts. The committee, which vets the president's nominees for the federal bench, has surely seen excitement over the years, but it was always still the Senate--navy suits, cordial smiles, professional conduct.

Not anymore. In their latest pursuits to pack the courts, Republicans have bent, twisted, and broken the rules, spawning unmatched acrimony, a criminal investigation, and some really angry Democrats.

According to George W. Bush, we have only the Democrats' "unprecedented obstructionist tactics" to blame. But how obstructed can the process be when committee Republicans outnumber Democrats 10 to 9 and a majority vote sends a nominee to the Senate floor? Moreover, the Senate has already con firmed 171 Bush-backed judges, including 71 since January 2003--more than any year between 1995 and 2000 of Bill Clinton's presidency and almost double the yearly average during those years.

How are they managing it, despite the president's controversial nominees, a slim Senate majority, and Democratic protests? Lift the hood and you'll see that the Senate Judiciary Committee is not so much a well-run machine as a well-rigged one, built by the White House to generate a steady stream of federal judges, as Bush promised, in the mold of Antonin Scalia and Clarence Thomas.

The Judiciary Committee has "always been a cockpit of really bitter social battles," says Herman Schwartz, American University law professor and author of the forthcoming Right Wing Justice: The Conservative Campaign to Take Over the Courts. But when Schwartz worked as chief counsel to Democrats on the Senate's antitrust subcommittee, he witnessed a collegiality that has since disappeared. "The [committee] debates were sharp but they were witty. ... The quips, the sharp digs, usually quite good humored, were always there. ... It was very different." So were the committee rules. During the six Clinton years that Republicans controlled Congress, Judiciary Committee Chairman Orrin Hatch faithfully administered the "blue-slip" policy, which allowed home-state senators to effectively veto nominees by not returning their evaluation forms to the committee. In 1998, the slips carried language stating that "[n]o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee's home state senators."

Today Hatch still reigns, but the blue slip policy doesn't: The Utah Republican announced early in 2003 that the slips were merely advisory, claiming that that had always been the case. "He'll come up with these really contorted reasons for why [a nominee] is moving over the objection of their home-state senators," says Marcia Kuntz, director of the Judicial Selection Project at the Alliance for Justice, an association of advocacy groups. In the case of Henry Sand, Bush's 6th Circuit nominee with Federalist Society credentials and a distaste for workers' rights, Hatch argued that even though Michigan's two Democratic senators hadn't returned blue slips, Saad would have a hearing because the senators received "White House consultation." As Kuntz explains, "Consultation from the White House consists of simply telling you that 'this is what we're going to do.'"

Republican rule bending reached new heights in February 2003 when committee Democrats, feeling that they had not had sufficient time to consider two nominees at hand, refused to participate in a rushed vote, invoking Rule IV, which says that at least one member of the minority must agree to end discussion. "[Y]ou have no right to continue a filibuster in this committee," Hatch told Democrats, and unilaterally forced the vote. …

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