Judicial Payback and Litmus Tests

The Senate currently is in middle of its 30-hour “Justice for Judges Marathon.” The reason for the prolonged debate is the Democrats’ filibustering of some of President Bush’s circuit court nominations.

If Democrats relied on substance instead of politics, the Senate and the judicial confirmation process would not be in this mess. There are several reasons that the Left is engaging in this blockade. Let’s take a brief look at two of them.


Democrats justify their treatment of Bush’s nominees by claiming that Republicans did the same thing to President Clinton. For example, just before the Democrat-led Judiciary Committee killed the nomination of Charles Pickering to the 5th Circuit last Congress, Sen. Russell Feingold (D.-Wis.) stated:

    “During the last six years of the Clinton Administration, this committee did not report out a single judge to the 5th Circuit Court of Appeals. . . . So there is a history here, and I think it means that the administration has a special burden to consult in a bipartisan way on nominees for this circuit. Otherwise, we would simply be rewarding the obstructionism that the president’s party engaged in over the last six years by allowing him to fill with his choices seats that his party held open for years, even when qualified nominees were advanced by President Clinton.” (March 14, 2002)

But before the Democrats assumed the majority in June of 2001, they repeatedly claimed that a Democratic majority would not engage in “payback” when a Republican President was making judicial nominations. Sen. Tom Daschle (D.-S.D.) even went so far as to make this promise:

    “There is going to be no payback. We are not going to do to Republican nominees, whenever that happens, what they have done to Democratic nominees. Why? Because it is not right. Will we differ? Absolutely. Will we have votes and vote against nominees on the basis of whatever we choose? Absolutely. But are we going to make them wait for years and years to get their fair opportunity to be voted on and considered? Absolutely not. That is not right. I do not care who is in charge. I do not care which President is making the nomination. That is not right.”(Congressional Record, S1365, March 9, 2000)

Pro-Abortion Litmus Test

For years, Democrats have stated that litmus tests must be avoided in the judicial confirmation process. Sen. Joe Biden (D.-Del.) once said:

    “[Judicial confirmation] is not about pro-life or pro-choice, conservative or liberal, it is not about Democrat or Republican. It is about intellectual and professional competence to serve as a member of the third co-equal branch of the Government.” (June 24, 1986)

When President Clinton was making nominations, Sen. Patrick Leahy (D.-Vt.) had this to say:

    “Partisan and narrow ideological efforts to impose political litmus tests on judicial nominees and shut down the judiciary have to stop. They hold no place, whether you have a Democrat as President or a Republican as President. The judiciary should not be part of a partisan or ideological power struggle. And I think that all of us as Senators in the most powerful democracy history has ever known have a stake in keeping an independent judiciary.” (Congressional Record, S75, January 28, 1998)

However, after the National Abortion Rights Action League labeled President Bush’s nominee to the 5th Circuit Court of Appeals Priscilla Owen as “someone who exemplifies the most extreme hostility to reproductive rights,” Democratic opposition to the nomination grew and the abortion issue was frequently noted. Fox News reported:

    “Democratic Sen. Patrick Leahy, chairman of the committee, and Sen. Dianne Feinstein (D.-Calif.), who led Owen’s nomination hearing in July, opened the Democratic charge against the judge Thursday by calling her a conservative extremist who worked to place barriers to a woman’s right to choose an abortion on numerous cases in Texas.” (September 5, 2002)

During Justice Owen’s hearing, Sen. Chuck Schumer (D.-N.Y.) told her that she got an “A+” for the one factor that she could not control – her gender. But when it came to what she – as a woman – believed, she failed. Apparently, Democrats like Schumer believe the courts need more diversity in gender and race . . . unless the nominees are pro-life. Sen. Hatch (R.-Utah) pointed out:

    “I’m afraid that the main reason Justice Owen is being opposed is . . . because she is a woman in public life who is believed to have personal views that some maintain should be unacceptable for a woman in public life to have. Such penalization is a matter of the greatest concern to me, because it represents, in my opinion, a new glass ceiling for women jurists.” (Owen Nomination Hearing, July 23, 2002)

And the Washington Post editorialized:

    “. . . At the end of the day, the objections to Justice Owen were almost purely ideological and dominated specifically by the politics of abortion. This is a dangerous road, one that will harm the judiciary and come back to bite the Democrats who rejected Justice Owen.” (September 13, 2002)

Democrats, thirsty to get even with Republicans and dedicated to protecting their abortion interests at all costs, will continue to delay. And when they lose even more Senate seats in coming elections, they’ll probably praise themselves for sacrificing their careers for a worthy cause.

Hey, Democrats: Unconstitutionally playing politics with the federal judiciary and abusing Senate rules is not a worthy cause.

(This First Look was adapted from a paper I prepared for the Senate Republican Policy Committee.)


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