Study Shows Steady Slowing of Judicial Confirmations

WASHINGTON - Judges who have been nominated to appellate courts by President Bush face confirmation delays almost three times as long as judges nominated for the same jobs by his father, President George H.W. Bush, a new study shows.

The lags in confirmations have been growing longer with each successive administration, and accelerated after Republicans took control of Congress under President Clinton, says a lengthy review of judicial confirmations by a scholar at the American Enterprise Institute, John Lott.

The wide-ranging statistical analysis is sure to add new fodder to the Senate battle over judicial nominations as Republicans edge closer to changing Senate rules and end the ability of Democrats to delay floor votes on the nominees.

The study makes the provocative claim that the most productive and frequently cited judges - whom Mr. Lott labels "quality" judges - are taking the longest to be confirmed. His results raise the question of whether the cumbersome and divisive process is affecting the quality of the bench.

"You are having a reduction in the actual effectiveness of the judges on the bench over time. That is a possible real cost of the more dragged-out fights we've been having," Mr. Lott said in an interview.

Mr. Lott speculated that Democrats target their opposition to block smart judges who are likely to be influential. It is a claim that was quickly rejected by at least one Democrat who has read the study.

"People are not being opposed because they are smart," said a former White House counsel to Mr. Clinton, William Marshall. "People are being opposed because the Bush administration is trying to effectuate an ideological agenda," said Mr. Marshall, a professor of law at the University of North Carolina at Chapel Hill.

Deliver the Knockout Judge
Jeff Larkin
January 09, 2005

The Bush victory in November augured well for long-haul conservative causes, be they tort, tax, or Social Security reform. But in one area, the election served notice that change would be swift and most pronounced. Federal judgeships.

The Democrats have filibustered qualified judicial nominee after qualified nominee, and their poster boy for the strategy was Senate Minority Leader Tom Daschle.

Or, to be precise, former Senate Minority Leader Tom Daschle.

President Bush quickly stepped up to the plate on the issue, renominating a slew of judges who were filibustered by the Democrats. This was in keeping with his unwavering stance on the issue, which included recess appointments of Judges Bill Pryor and Charles Pickering.

Yet, at the moment of supreme Democratic weakness, the signs from the GOP are disquieting. Newly elevated Chairman of the Judiciary Committee Arlen Specter (R-PA) started off by securing the support of his Katie Couric base and announcing that he would not be a rubber stamp for the White House. The National Review and George Will came out against the use of the nuclear option in the Senate, a parliamentary procedure that would require a simple majority vote to end filibusters of judicial nominees (The Review's position is particularly galling given Byron York's May 2004 criticism of the White House for agreeing to a cease fire to get bottled-up nominees through prior to the election). And word is that Senator John McCain (R-MSNBC) has followed suit, expressing his distaste for the muscular strategy.

And the Democrats? They remain vicious and wild. Attorney General nominee Alberto Gonzales, our modern day Torquemada, is getting a mere taste of what Bush's judicial nominees will receive shortly. Daschle's replacement, Senator Harry Reid (D-NV), came out swinging, offering his opinion that Clarence Thomas' opinions were an "embarrassment". When pressed later to name one such opinion, Reid shot back with the Hillside Dairy dissent. James Taranto demonstrated that Reid's citation was ridiculous, but I think the Minority Leader's sloppiness evinces the "I don't give a crap what I say" mentality of warfare.

Through it all, Chief Justice William Rehnquist battles cancer. His role is now limited, with the expectation that he will soon vacate his position.

Surveying the battlefield, Bush cannot delegate the fight. The Republicans in the Senate don't know what to do with their advantage, and they are simply too weak to engage in hand-to-hand combat with the Democrats. Recall, the Senate Republicans were barely able to mount the marginally compelling "round-the-clock" sessions protesting the filibusters. They are also the folks who managed to bungle a story about the heinous strategies of Democratic Judiciary Committee staff, all proven in memoranda. One memo advocated opposing Miguel Estrada because "he is Latino." Another stated "most of Bush's nominees are nazis." A third revealed that the president of the NAACP's Legal Defense Fund spoke with Senator Kennedy's staff about delaying a committee vote on Judge Julia Gibbons to the 6th Circuit - until after the Circuit ruled on an affirmative action case.

Only the Senate GOP could subordinate release of these memos to the revelation that a Republican Judiciary committee staff member accessed them from public committee computer files (though public solely because of Democratic failure to secure them). In the land of the GOP Senate, the procurement of the memos is the great crime, not the dastardly deeds recorded therein. These folks aren't fighters. They're gentlemen. Naturally, the Democrats are not backing down. They will rip at most any non-vanilla nominee forwarded by the president.

As such, to replace Rehnquist, there is but one choice. For several reasons, that choice is California Supreme Court Justice Janice Rogers Brown.

First, she has been filibustered, which means that Bush can make the announcement by casting her as a beleaguered victim of the most base partisanship. He can start a fight, not wait for it. And as anyone who has been in a fight knows, the person who gets in the first punch generally wins.

Second, Brown has been elected. The people of California have spoken on her qualifications. If she's good enough for Barbara Boxer's constituents, why not the nation?

Third, her story is compelling. She's a sharecropper's daughter. As Jack Kelly observes, "Janice Rogers Brown is Condoleezza Rice with a law degree. She is a bright, articulate, black woman who accomplished much despite growing up in the segregated South." If the Democrats want to crap on an American success story, they should have at it.

Fourth, she is a two-fer. She will be the first woman Chief Justice. She will be the first black Chief Justice. It is a shot to the heart of Democratic constituencies, one wavering, one core.

Fifth, she is a dangerously articulate ideologue. She will not duck and cover before the snide inquiries of such lowlights as Senators Kennedy, Leahy and Durbin. She'll fire back hard in what will be nationally televised hearings. The Republicans don't want someone who has to "explain" their support for a parental notification law. They want someone who can explain why such a law is in no way unconstitutional and is, in fact, critical to "societal values" (as Brown wrote in her dissenting opinion in American Academy of Pediatrics v. Lungren ). The GOP might even want someone who can explain why she might be suspicious of big government. In her October 2003 committee hearing, Brown matter-of-factly told a questioner that she said as much in a speech to young law students, trying to make them think, and "[t]he speech speaks for itself."

Sixth, she's young. 54 years young.

Last, Brown will force the Republicans take a stand. Even nervous nellies like Arlen Specter will not be able to waver on such a compelling nominee (and Specter is capable of fighting, as we saw with Clarence Thomas). Given the early fecklessness of the Senate Republicans, the president needs a nominee who will not only be the anchor that drowns the opposition but serves to lash his own party to the gunwales. Justice Brown is that nominee.

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