This week marked the nomination of 30 federal judges by President Bush – five Court of Appeals nominees and 25 District Court nominees – to fill some of the 56 open slots on the federal courts.
This would ordinarily be something to celebrate.
Overshadowing those nominations, however, is the withdrawal of four previously nominated judges who were denied an up-or-down vote for, in some cases, years. With the incoming Democratic majority in the Senate and Sen. Patrick Leahy, D-Vt., chairing the Judiciary Committee, the president pragmatically chose not to renominate four Court of Appeals nominees – William Haynes, William Myers, Terrence Boyle and Michael Wallace – who have become milk-carton candidates for judges missing in action. Given November's election results, they certainly weren't going to get a vote any time in the next two years.
What a waste. And what an incredible indictment of the confirmation process that supposedly passes for the Senate's constitutional duty to offer "advice and consent" on the president's judicial nominees.
I'd like to blame the demise of the "Failed Four" entirely on Senate liberals. They had previously chased away other superbly qualified appellate court nominees such as Miguel Estrada, Carolyn Kuhl, Charles Pickering and Henry Saad through filibuster. Their obstruction, name-calling and delaying tactics in the Judiciary Committee contributed to the most recent departures, to be sure, but the sad truth is that neither Senate conservatives nor the White House came to the Failed Four's defense in a meaningful way, leaving them twisting in the wind.
Take William Haynes, the Department of Defense top legal counsel since 2001. Nominated in 2003, his resume boasted stellar academic and business credentials and many years of public service. He should have been a slam-dunk for the 4th U.S. Circuit Court of Appeals. However, because his legal work with the DOD on the issue of interrogation tactics did not sit well with Republican Sens. Lindsey Graham, R-S.C., and John McCain, R-Ariz., liberals just sat back and watched Graham torpedo Haynes during the confirmation hearing. Although no other conservatives sided with Graham and McCain, Haynes never even received a committee vote, let alone a floor vote.
William Myers and Terrence Boyle were targeted by the usual liberal special-interest groups that found one or more of their past actions as a lawyer or judge not to their liking. Both, however, made it to the floor of the Senate, where Majority Leader Bill Frist, R-Tenn., should have made their votes a priority. Frist procrastinated, blaming the press of other floor business, which resulted in the nominations going back to the White House for a do-over.
In Boyle's case, a federal district-court judge since 1984, his mistreatment was especially vile, since he had been nominated to the 4th Circuit under the first President Bush in 1991, then renominated by George W. Bush in 2001. It looked last year as though Boyle's nomination might at last get some attention, after the Left's trumped-up charges of racism and a high reversal rate were analyzed and found wanting. However, a liberal hit-piece appeared on the Internet charging Boyle with ethical lapses in hearing cases in which he supposedly held a financial interest in one of the parties -- and the nomination stalled. Although the White House or the Department of Justice should have investigated and answered the charges immediately, they did nothing, and it was left to former clerks of the judge and conservative bloggers to finally deflate the ethics charges, but, by that time, the momentum was gone and Frist was on to other things.
Myers' sin appears to have been that of representing miners and ranchers in his private law practice and later favoring them during his tenure with the Department of the Interior, according to the environmental groups leading the attack on his nomination. Although the favoritism charges were investigated and Myers was cleared, the Left never relented in its name-calling. (Apparently the original sin of providing legal representation to miners and ranchers was still too egregious to be atoned for.)
And for a 9th Circuit nominee whose future jurisdiction would cover California and eight other western states, his real problem may have been that he had publicly criticized 1994 environmental legislation supported by Sen. Diane Feinstein, D-Calif., who also happened to be a member of the Judiciary Committee. Oops.
Michael Wallace, nominated to the 5th Circuit in 2006, got derailed by an American Bar Association committee's negative recommendation. Although the ABA committee's work was seriously flawed and incomprehensible to those who know Wallace and practice law with him, you could hear the crickets chirping as everyone waited for Senate Republicans and/or the White House to come to Wallace's defense. Future nominees, take note.
The confirmation process itself is seriously flawed. Although the U.S. Constitution requires the Senate to give its "advice and consent" to nominations, the same document also allows the Senate to make its own internal rules as to how it operates. Over the past 200 years or so, that has come to mean "secret holds," "blue slips," "committee prerogatives" and most recently, cloture votes and filibusters, all of which have been used to frustrate the very simple objective of bringing a nominee's name up on the floor of the Senate for an up-or-down vote. Beginning in 2003, we witnessed the spectacle of seven appellate-court nominees filibustered by Democrats and threats of more to come, something previously unheard of for nominees with majority support.
Republican proposals to peacefully revise those internal Senate rules at various times in the last several years to allow debate on nominations, but prevent out-and-out obstruction, were rejected by Democrats. Go figure. Why would the minority party voluntarily give up a weapon in its arsenal today in response to the apparently inane argument that the rule change would benefit them in the future when elections resulted in different parties in power? Don't bother me with the future.
Undeterred, Republicans attempted in 2005 to exercise the "constitutional option" to restore the Senate tradition of simple majority up-or-down votes on judicial nominees, rather than the 60-plus votes needed to break a filibuster. As the option was about to be voted on, in stepped the newly formed "Gang of 14," seven members of which (McCain, Graham, Warner, Snowe, Collins, DeWine and Chafee) belonged, at least nominally, to the same political party as the president whose nominations were being filibustered. The agreement entered into by the Gang gave the president a few filibustered appellate-court nominees the vote they were entitled to, but prevented the constitutional option from being exercised -- and thus didn't resolve the underlying problem of future obstruction. Now the Gang is no more, their agreement has expired and the problem of obstruction remains.
And Haynes, Myers, Boyle and Wallace are no doubt scratching their heads over the price of saying "yes" to the call of public service.
(Paid for by Focus on the Family Action)
