Losing an Issue

Both the Senate and White House have risen from an all-year slumber that ignored their issue of judicial confirmations until now. Last Thursday night, the Senate unexpectedly confirmed four judges, on a voice vote after no debate. On Tuesday, another appeals judge was confirmed, 67 to 30, after token debate. Without fanfare, the White House suddenly poured out 13 judicial nominations. But, from the Republican standpoint in 2006 midterm elections, it looks like too little, too late.

On June 16, six conservative Republican members of the Senate Judiciary Committee had sent President Bush a private letter protesting the slow pace of judicial confirmations. They noted an unusually high number of judicial vacancies for the sixth year of a presidency, including nine on the circuit courts, with no nominations made over a two-month span early this year. Pleading with the president, the senators said "the fast-approaching November elections make it imperative that the Senate confirms as many strong nominees as possible in the limited time remaining in the 109th Congress."

Bush did not answer the senators. Coincidentally or not, however, the president sent up the 13 nominations — including five circuit judges — between June 28 and July 13. Still, the president has not submitted a name for five vacancies on circuit seats and 14 empty district seats. This failure is inexplicable considering how the collapse of the Democratic obstruction campaign contributed to 2004 GOP election victories. Holding a weak hand in 2006, the Republicans are discarding a rare trump card.

Justice Department officials have quietly passed word that Senate Majority Leader Bill Frist advised it was too late in the year for new nominees. When I checked, Frist unequivocally denied that. Perhaps the Justice officials misunderstood Frist aides who have argued that if the White House dawdled, there would be no time for confirmation.

Nevertheless, Frist indisputably put judicial confirmation on the back burner. Although the number of judges confirmed in this Congress is extraordinarily low, Frist has sounded like Democratic predecessor Tom Daschle in issuing statements boasting of the number of judges confirmed under his watch. The party leadership has scheduled no floor debate time on judges between now and the November elections. No debate, no campaign issue.

While not happy with Frist, conservatives view Senate Judiciary Committee Chairman Arlen Specter as a bigger problem. Specter, never attuned to national Republican concerns, has shown less interest in confirming conservative judges than in intelligence controversies, asbestos law reform and voting rights extension. But one Judiciary Committee conservative (who asked that his name not be used) rated Specter and Frist as 10 percent of the problem and the White House 90 percent — especially Harriet Miers, Bush’s pal from Texas and failed first choice to be the last Supreme Court nominee.

As White House counsel, Miers has been criticized on Capitol Hill for the caliber of some recent nominees and the lethargic pace of appointments. She wanted her friend, Columbia Law School professor Debra Livingston, named to the prestigious District of Columbia Circuit Court of Appeals. Conservatives blocked Livingston as undependable. Instead, Bush on June 29 nominated conservative Assistant Attorney General Peter Keisler for the D.C. circuit. However, Miers maneuvered Livingston to a seat on the New York-based 2nd Circuit.

Beyond the White House, Republicans are in disarray on judges. Sen. Lindsey Graham, one of the conservative signers of the June 16 letter, is under fierce attack from the right for opposing Bush’s nomination of Pentagon General Counsel William J. Haynes to the 4th Circuit in Richmond, Va., because of his role in handling terrorist detainees. In response, Graham has contended Haynes and two other embattled nominees (whom he supports) are "wounded" and asked for new, better-qualified choices.

Despite recent nominations and confirmations, it seems too late for a Senate battle to impact the midterm campaign. Sen. Edward M. Kennedy must sigh in relief. His grand design to block Bush’s judicial nominees was a fiasco, handing Republicans a major 2004 campaign issue and leading to confirmation of two conservative Supreme Court justices. It is the last issue Kennedy wants to engage before the 2006 campaign, and Republicans are granting his desires.