Not Confirming Judges

On May 9, 2001, President Bush nominated U.S. District Judge Terrence W. Boyle of Edenton, N.C., to the 4th Circuit Court of Appeals. It took nearly four years for the Judiciary Committee to send his nomination to the Senate floor. It has languished there for more than a year with no prospect for Senate confirmation and no apparent interest by the Republican leadership.

Boyle has been on the federal bench for 22 years, and his only liability is that he is a conservative who spent a year on Sen. Jesse Helms’s staff. While he is the Bush appellate court nominee who has been waiting for confirmation the longest, he is not alone. Ten other prospective appeals judges face Senate inaction, with the window of opportunity in the second Bush term already closing. They seem unaffected by last year’s avoidance of a constitutional crisis over the confirmation process and the approval of two Supreme Court justices.

Sean Rushton of the Committee for Justice this week e-mailed his conservative network that the "push for appellate confirmations is on." But there has been no attention given Boyle and his fellow nominees by Senate Majority Leader Bill Frist, who has been taking victory laps after appearing to break the Senate judicial confirmation impasse. Asking whether Republicans will raise the issue to "excite conservatives, highlight liberal extremism and force Democrats into compromising choices," Rushton said, "November’s election may rest on the decision."

The moderate bipartisan "Gang of 14" senators last year averted a showdown on whether Frist would use the "nuclear option" to break multiple judicial filibusters. That immediately resulted in confirmation of three nominees opposed by the liberals, but the fate of Boyle and the other four appellate nominees facing filibusters was left pending. Since then, only four Bush nominees have been confirmed. Six other appellate nominees await confirmation, and an additional nine such seats are vacant.

This situation does not interest prominent Senate Republicans or their allied business lobbyists in Washington as time grows short. Nothing will be done in 2006 after the August recess. Even assuming that Republicans retain Senate control in this year’s elections, the word on Capitol Hill is that September 2007 is the deadline for confirmation of Bush’s judges before Democrats dig in.

Thus, Sen. Edward M. Kennedy’s filibuster strategy may not be a total failure after all. While it did not block conservatives from the Supreme Court, it is keeping open 20 appellate judgeships for a Democratic president to fill.

That is why conservative strategists want Terry Boyle, the most easily confirmable of the conservatives, brought immediately to a vote. This veteran judge could not be said to qualify for the "extraordinary circumstances" standard justifying a filibuster under the Gang of 14 exception. The votes for the nuclear option presumably would be there for Boyle if the Democrats filibustered. In addition to Boyle, conservatives put the highest priority on these nominees:

  • Brett Kavanaugh, White House staff secretary. First named to the District of Columbia Circuit by Bush on July 25, 2003, Democrats blocked the routine retention of his nomination at the end of the last Congress and now demand a second hearing to delay any hopes for him. His liability is being a senior Bush aide and a former assistant to independent counsel Kenneth Starr.
  • William Haynes, general counsel of the Defense Department. A former General Dynamic executive nominated to the 4th Circuit, he has been blocked by Democrats for his association with the Pentagon’s enemy combatant policies as a protege of vice presidential chief of staff David Addington.
  • Michael Wallace, a Jackson, Miss. lawyer. He was named to the 5th Circuit six weeks ago to fill the vacancy left by the resignation of Judge Charles Pickering. A former aide to Sen. Trent Lott, Wallace faces the same opposition from the Left that filibustered Pickering until he reached the bench on a Bush recess appointment.

Continued Democratic reluctance to confirm any conservative judge is expected, but the conservative movement is appalled at the lack of interest by Senate Republicans in confronting this outrage. Pressure is building from members of the Republican base who put a higher priority than their senators do on the future of the federal judiciary.