Magazine article Insight on the News

Democrats' Split Personality Could Hamper Confirmations

Magazine article Insight on the News

Democrats' Split Personality Could Hamper Confirmations

Article excerpt

President George W. Bush soon will begin creating his most important legacy by sending judicial nominees to the Senate. The first question will be whether those nominees reflect Bush's promise to appoint judges who know the difference between interpreting and making law. The second question will be which of the Senate Democrats' two personalities will emerge in the confirmation process.

President Bush certainly has a big task ahead of him. With 375 Clinton activists joining their ranks, more than 54 percent of full-time federal judges are Democrat appointees. Since nearly every Democrat and easily one-third of Republican appointees are in the activist mold, the federal bench's philosophical balance is even worse than its partisan division.

Another reason to get the process under way immediately is that new presidents usually have a rather unproductive first year. While the Senate has confirmed an average of 49 judges per year during the last two decades, confirmations in a new president's first year have averaged only 25.

While the task is big and the clock is ticking, the opportunity is significant. Data from the Administrative Office of the U.S. Courts indicate that, today, 96 full-time judicial positions are vacant. While a dozen vacancies are very recent and Congress created another 10 new positions just last fall, this is the highest vacancy level in more than three years.

President Bush has signaled his intent to close this gap by appointing judges who "interpret the law, not legislate from the bench." But because judicial appointments require not only a presidential nomination but also Senate approval, the question is whether Senate Democrats will take a hard-line partisan approach to judicial confirmations.

We might see "Confirmation Democrats." These Democrats insist on more and faster confirmations, arguing that "judges delayed is justice denied." In March 2000, for example, Senate Minority Leader Tom Daschle of South Dakota said 74 vacancies (23 percent less than today) amounted to a "judicial emergency, and we have to get on with a lot more confirmations." No matter which party controlled the White House, Daschle said Democrats would "not allow the politics of a national election to dictate the number of confirmations."

In June 1998, with just 72 vacancies (25 percent less than today), Sen. Patrick Leahy (D-Vt.) called for more Judiciary Committee nomination hearings and said: "I hope that the Judiciary Committee and the Senate will proceed to consider and confirm judicial nominees more promptly." A few months later, when vacancies dropped to 69, he called the situation a "judicial vacancy crisis."

Leftist interest groups echoed their Senate Democrat allies. …

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