Soon the 109th Congress will come to an end after having compiled one of the worst records on judicial confirmations in modern political history — a remarkable “accomplishment” given the fact that one party has held Congress and the White House for six years.
Virtually everyone agrees: The president’s judicial nominees are eminently qualified and the votes needed for confirmation are there. And yet, the Senate has refused to fulfill its constitutional obligations and has denied these nominees an up-or-down vote. Why?
There is a lot of blame to go around with respect to the Senate’s obstruction of President Bush’s judicial nominees. Democrats, who are philosophically opposed to the candidates, are playing games with the judicial confirmation process in order to appease the liberal wing of their party. They even took the extraordinary step of launching judicial filibusters to prevent up-or-down votes — a tactic that is not only unprecedented, but also flagrantly unconstitutional.
Republicans, for their part, have allowed this obstruction to happen and have even participated to some degree. Senate Majority Leader Bill Frist, forced in part by the so-called “Gang of 14” moderates in the Senate, struck a compromise last year to usher a few of the president’s nominees through the confirmation process. But the deal left open the prospect of unconstitutional judicial filibusters at a later date. At the time, I was concerned this compromise would merely delay the fight for another day. But now, the situation is even worse. Republicans have stopped fighting altogether.
According to the Office of Legal Policy at the Department of Justice, there are currently 27 federal judicial nominees awaiting confirmation with 45 judicial vacancies to fill. Three of these nominees, in particular, have been targeted for obstruction because of their conservative views: Terrence Boyle, William Haynes, and William Myers. According to a recent article in Roll Call, the newspaper that covers Capitol Hill, the chances of a vote on any of them before Election Day is, “Zero. Zilch.”
Each of these nominees has waited years for their confirmation vote, enduring disgraceful attempts by Democrats to sully their characters and reputations. However, Judge Boyle, the president’s choice for the 4th Circuit, has the dubious distinction of being the president’s longest waiting nominee. In fact, Judge Boyle was first nominated 14 years ago by President H.W. Bush, but was never given a hearing by then-Democrat Judiciary Committee Chairman Joe Biden.
This time around Judge Boyle received his hearing and the nomination was discharged by the Senate Judiciary Committee. Senator Frist, however, is sitting on the nomination, refusing to bring it to the Senate floor for a vote. This continues a long-term pattern on the part of Senate Republicans of allowing the Democrats to run the judicial confirmation process as if they, the Democrats, were the majority. When it comes to key judicial nominations, Ted Kennedy may as well have been running the show. In fact, he is.
Conservatives have waited a long time for the opportunity to confirm judges who will abide by the U.S. Constitution and the rule of law. Conservatives have the right nominees. But we are missing leadership in the Senate.