Obstructing confirmation of judicial nominees is easy when you’re in the Senate majority. During the 107th Congress, Democrats controlled the agenda so they just didn’t give hearings or votes to many appeals court nominees. Now in the minority, Democrats are still bent on obstruction, and the tools they are using threaten not only judicial nominees, but the integrity of the Senate itself.
The Senate’s rules and traditions put an unusual twist on the "majority rule" operating in most legislative bodies. Groups of senators, or even individuals, have tremendous power and, while both parties use that power to their advantage, Democrats are abusing it in their attempt to block Bush judges.
First, Democrats abused the filibuster rule. Requiring 60 votes to stop debate is a way to slow up the process before the Senate votes. It is not supposed to be a way to abolish majority by stopping the process altogether. Democrats have turned the filibuster from a means to the end of more deliberation into an end in itself, a way to abolish majority rule altogether. So far, their unprecedented filibusters of appeals court nominees have resisted unprecedented efforts to put the legislative process back on track.
Now Democrats are abusing the so-called "blue slip" tradition. Traditionally, senators may indicate support or opposition to judicial nominees who would serve in their state. Opposition by a home-state senator bears heavily on the decision whether to hold a Judiciary Committee hearing. Naturally, home-state opposition has less weight regarding appeals court nominees, whose jurisdiction is regional, than district court nominees, whose decisions would affect only that senator’s constituents.
Which brings us to the newest front in the obstruction war. The U.S. Court of Appeals for the Sixth Circuit, stretching from Michigan to Kentucky, has the highest vacancy rate and longest case disposition of any circuit in the country. The Republican Senate this year has confirmed two nominees, but four remain.
One of those vacancies is more than four years old and another dates back to May 1, 1995. All four have been deemed a "judicial emergency" because of their long duration and impact on the court’s backlog of cases. There have been no hearings on the four nominees, pending now an average of nearly 560 days.
Michigan Democrat Sens. Carl Levin and Debbie Stabenow have used their position as home-state senators to block hearings on these nominees. If they objected to these nominees on the merits, this would still be an unprecedented use of the system; no home-state senator has blocked so many nominees at the same. They do not, however, object to these nominees on the merits, making this an unprecedented abuse of the system.
Sens. Levin and Stabenow are blocking these Bush nominees out of spite, plain and simple. Several years ago, the Senate did not confirm Clinton nominees to two of these seats, and the senators are still upset about it. While that is just as ridiculous as it sounds, it gets even worse when you understand that one of those Clinton "disappointees" is married to Sen. Levin’s cousin. At any rate, the Senators are demanding that President Bush appoint those failed Clinton nominees instead. They know, of course, that the Democrats left dozens of the first President Bush’s nominees unconfirmed in 1992 and no one even suggested, let alone demanded, that President Clinton re-nominate a single one.
Just as using the filibuster to abolish majority rule abuses that system, using the home-state system to extort different nominees from the president abuses this one. On July 7, Sen. Frist filed a motion to discharge these nominees from the Judiciary Committee without a hearing. While that motion takes only 51 votes to pass, it can be - you guessed it - filibustered. Then on July 16, he wrote Judiciary Committee Chairman Orrin Hatch asking that he schedule hearings despite the Levin/Stabenow objections. He was joined by Assistant Majority Leader Sen. Mitch McConnell, whose state of Kentucky suffers from this Sixth Circuit blockade.
This step is long overdue. At some point, partisan politics goes beyond an aggressive use of the system and abuses the system, threatening the integrity of the Senate as an institution. These abuses have to stop, or Democrats will have a complete lock on the confirmation process. Home-state senators will object to hearings, their colleagues will filibuster any motion to discharge nominees without hearings, and they will all filibuster nominees lucky enough to emerge from committee. Neither party should be allowed to rig the system to get its way when it would lose an up-or-down vote.
