Senate liberals have had seven years to perfect the obstruction of President Bush's judicial nominees, and they are poised to add an additional wrinkle this presidential election year. Since you'll want to follow along with the progress (or lack thereof) of federal judicial confirmations this year, especially for the more important Court of Appeals nominees for the 12 federal Circuits, you'll need this practical explanation of the written and unwritten rules, techniques, excuses and "senatorial courtesies" that will be in play by liberals bent on keeping good judges off the federal bench.
Here they are, in no particular order:
Committee Scheduling. The Senate Judiciary Committee is controlled again this year by Democrats, who hold a 10-9 advantage over Republicans. The chairman of that committee, Patrick Leahy, D-Vt., is a veteran of past judicial-obstruction wars. He can schedule nominees for committee hearings and committee votes pretty much whenever he wants. If a nominee doesn't get scheduled in committee, he goes nowhere. Peter Keisler, a nominee for the D.C. Circuit and most recently the acting attorney general of the United States, is the highest profile scheduling victim at the moment. His hearing was completed in 2006 but he has never been scheduled for a committee vote.
Blue Slips. This is another "senatorial courtesy," whereby names of judicial nominees are submitted to the "home state" senators to approve (or not) before the Judiciary Committee formally takes up those nominations. Without home state senator approval, nominees never even make it to Leahy's desk to schedule.
Holds. Any senator can place an indefinite "hold" on a particular nominee, blocking further consideration of the nominee, and in most cases the senator placing a "hold" is not revealed unless he or she chooses to make it public.
"The president won't consult with me!" This particular liberal complaint is usually given as justification for one of the other obstruction techniques then employed, particularly the blue slip veto. However, the Constitution doesn't mention the "advice" part of "advice and consent" until after the president nominates someone. Check it yourself: Article II, Section 2, Clause 2. For you history and Constitution buffs, Federalist #66 also leaves no room for doubt on this issue.
Hearings. We've all seen the "gotcha" questions and the circus spectacle of the Roberts and Alito confirmation hearings, and the Clarence Thomas hearings in 1991 will forever serve as the low-water mark of confirmation "smear" politics. Circuit Court of Appeals nominees face essentially the same gauntlet, albeit typically out of the glare of CSPAN coverage. If a nominee can be embarrassed or derailed at the hearing, the game is over.
Filibuster. We saw the unconstitutional use of this tactic from 2003 to 2005, when Democrats were the minority party and other obstruction tactics were unavailable. With Democrats presently in control of the Senate Judiciary Committee, however, we probably won't see this particular stratagem employed this year.
The "Thurmond Rule." As if liberals needed another obstruction tool, Chairman Leahy has promised to resurrect the vague historical precedent, supposedly proposed by Sen.Strom Thurmond during the 1980 presidential election year to restrict the number of judges confirmed during the latter half of the year. The so-called "Thurmond Rule" is more myth than fact, and, at any rate, Leahy is on record back during the 2000 presidential election year as calling for its abandonment so that more Clinton nominees could be confirmed. Consistency is not one of Chairman Leahy's strong points.
Not to put too fine a point on it, but remember that Circuit Courts of Appeal nominees are the ones to watch. Any one of them could become a future nominee for Supreme Court justice, which is the primary reason that "living Constitution" liberals oppose judicial conservatives who look to the text of the Constitution and its original understanding in order to interpret its meaning. The more numerous, but less important, lower federal district court nominees do not generate much liberal opposition and are confirmed in far greater numbers than appellate judges, so Chairman Leahy is fond of lumping both categories of confirmations together in order to inflate his overall numbers while deflecting attention away from liberals' obstruction of Circuit Court of Appeals nominees.
Here's the bottom line for you nomination-watchers: The average number of Circuit Court of Appeals nominees confirmed in the last two years of a presidency has averaged about 17 since the Carter administration. President Clinton had 15 appellate judges confirmed in his last two years. Only six of President Bush's appellate judges were confirmed in 2007, and it's doubtful Leahy feels the pressure to step up the pace in 2008 to confirm nine to 11 more. That is, unless you get informed, get involved, and keep the pressure on your senators. We'll help you do that right here at CitizenLink. Stay tuned.
TAKE ACTION
Ask Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, to schedule hearings for President Bush's judicial nominees. You can find contact information through our Action Center.
