Posted on 11/01/2001 7:13:29 AM PST by Starmaker
A couple of weeks ago, Senate Republicans tried to get Majority Leader Tom Daschle and Judiciary Committee Chairman Patrick Leahy to quit stalling President Bush´s judicial nominees. Their idea was to delay passage of an appropriations bill and force the Democrats to confirm more than handful of nominees this year — an effort that failed, in part because the Republicans didn´t have the leverage to pull it off. As National Review´s Byron York reported, Daschle told Republican leaders — and the President — that Democrats aren´t the ones who need judges confirmed or appropriations bills passed.
With that, Senate Republicans decided to let the bill move forward, and Democrats insisted that they really would move judges in good faith. Meaning that judicial nominees will continue to trickle out of the Judiciary Committee, while the 106 vacancies — 40 of them designated as judicial emergencies — get filled . . . whenever.
At times like this, when Senator Daschle can look at the nearly half-empty U.S. Court of Appeals for the Sixth Circuit and shrug, it´s important to understand why the judiciary´s current situation is a problem. And there´s no better place to look for answers than the words of Senate Democrats like Tom Daschle and Patrick Leahy.
When there were 75 vacancies, Mr. Daschle said: "There is a dire shortage — we have a judicial emergency right now, throughout the country. And it´s important for us to respond to that emergency, confirm the many, many judges whose nominations are still languishing either in committee or on the floor."
So, with an additional 31 vacancies today, we must have an extreme judicial emergency throughout the country. Odd that the Majority Leader is in no hurry to do anything about it.
But why do judicial vacancies matter? Do they really affect anyone?
Vacancies affect the quality of justice in the United States, creating a huge backlog of federal cases, explained Senator Leahy several years ago, when there were 81 vacancies — 25 fewer than today.
"When a U.S. attorney can refer to the lack of courtrooms and federal judges as a bottleneck in the criminal justice process and the chief judge of a federal district court can acknowledge that the court is so overwhelmed with criminal cases that it is operating like an assembly line, that cases are not given the attention that they deserve and that you know that you're making a lot of mistakes because of the speed, we have reached a crisis," he said when there were 93 vacancies. "That is not American justice, that is not the federal justice system on which all of us rely to protect our rights while enforcing the law."
All right, you may think, vacancies are a problem. But how did we get into this mess?
Judicial vacancies never wholly disappear, which is why the Clinton Justice Department once referred to 63 vacancies as virtual full employment of the federal judiciary. But the numbers do fluctuate.
Under a Democrat Senate between 1991 and mid-1994, for example, vacancies were never below 100; in fact, they soared to 140 in 1991 and 131 in 1993. It wasn´t until a few months before the Democrats lost the Senate — well into Mr. Clinton´s presidency — that the figure dropped below 100.
Under a Republican Senate — and during the Clinton years — vacancies generally stayed below 90 and even dropped to the 50s. Judicial vacancies were generally in the 60s or 70s, not far from that virtual full employment mark. In fact, there were 66 vacancies one year ago today — just before the election — and retirements only brought that figure to the 80s when Mr. Clinton left office.
President Bush began nominating judges on May 9, far earlier than new Presidents normally do (Bill Clinton made his first nominations in August). By June 1, 18 nominees were waiting for confirmation — and by the August recess, 40 nominees were before the Senate. Today, there are 48.
In the spring, before they lost the Senate, Republicans scheduled a hearing for a few nominees, only to cancel it because Democrats objected that it was too soon. When Senator Leahy took over Judiciary, he did hold hearings, but only for a few at a time. Instead of holding hearings for four or five nominees as his Republican predecessor did, it wasn´t unusual to find only one nominee on the witness list.
And so just 12 nominees have been confirmed this year, 20 percent of President Bush´s first year nominees. In contrast, former Presidents Clinton, Bush, and Reagan had 57, 62, and 91 percent of their first year nominees confirmed.
In the midst of this deliberate slowdown — just to top it all off — Democrats have held hearings to justify their obstruction campaign, discussing the creation of ideological litmus tests and shifting the burden of proof to nominees.
What can you say about something like this? Again, Senator Leahy describes it best: "Those who delay or prevent the filling of these vacancies must understand that they are delaying or preventing the administration of justice."
Mr. Leahy´s and Mr. Daschle´s own words about the "vacancy crisis" are looking them in the face. Will partisan politics trump their concerns about the administration of justice? It seems they´ve already answered that one for us.
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