My friend, the late Senator Daniel Patrick Moynihan, once said that you may be entitled to your own opinion, but not your own set of facts. No matter what your opinion of the obstruction campaign against President Bush’s judicial nominees, that campaign is a fact.
Past performance is a good yardstick for measuring current performance, but it requires comparing the comparable. The way some like to splice and dice numbers or time periods looks more like justifying rather than evaluating what is going on today. It is about as valid as comparing apples and cactus. The more legitimate measurement is an average covering a significant period of time and including various partisan combinations of White House and Senate control. My 32 years in the Senate and on the Judiciary Committee span both Republican and Democratic majorities and Presidents. Evaluating the extent of confirmation obstruction requires applying this standard to both stages in the process, the Judiciary Committee and the Senate floor.
During that time, seven Congresses like the current one included a presidential election year. On average per Congress, the Senate was in session for 313 days, the Judiciary Committee held hearings for 25 appeals court nominees, and the Senate confirmed 106 nominees, 20 to the U.S. Court of Appeals. In the current 110th Congress, we have been in session for approximately 290 days, the Judiciary Committee has held hearings for eight appeals court nominees, and the Senate has confirmed 54 nominees, 10 to the U.S. Court of Appeals.
These are facts, not opinions. Using the appropriate yardstick of the last seven presidential election Congresses, we are today more then 90 percent finished with our days in session but have so far given a hearing to less than one-third and confirmed only half as many appeals court nominees. As a result, President Bush’s judicial confirmation total lags far beyond his predecessors, 305 to 357 at this point in their respective presidencies.
Such a deliberate slowdown is otherwise known as obstruction. Democrats keep changing their standards, ignoring long-pending nominees, and taking whatever steps are necessary to suppress judicial confirmations. The list of changing standards grows all the time. At the end of the Clinton administration, for example, the Democratic minority demanded that hearings and confirmations continue to the end of the year. They offered as a guide the presidential election year 1992, when the Judiciary Committee held hearings until September 24 and the Senate confirmed nominees until October 8, the day before final adjournment. In 1992, the Senate confirmed 64 judges, 11 to the U.S. Court of Appeals.
Like 1992, Democrats are today in the majority. Like 1992, a President Bush is in the White House. If anyone thinks, however, that there will be real confirmation activity in September, or that this year the Senate will even be within shooting distance of 1992’s confirmation totals, I have some ocean-front property in the Utah desert to sell them. What Democrats once argued was the very definition of the Senate’s confirmation duty has been rendered inoperative.
Another example of how Democrats today treat as a law of nature what they once dismissed as a confirmation myth involves the so-called “Thurmond rule.” On September 10, 1980, when Senator Thurmond was Judiciary Committee Ranking Member, he asked that a committee vote on 13 recent nominees be delayed for one week so that committee members could thoroughly review their qualifications and record. Ten of those 13 were approved on September 17 and confirmed on September 29.
That is what actually happened. When Senator Thurmond chaired the Judiciary Committee during the 1984 presidential election year, the Senate confirmed 10 appeals court nominees, more than twice as many as the Senate has confirmed so far this year.
If Democrats today want to follow Senator Thurmond’s example, then we can expect the Judiciary Committee to be approving, and the full Senate to be confirming, judicial nominees into at least late September. Don’t hold your breath.
The current version of this so-called rule is that, as Judiciary Committee Chairman Patrick Leahy said last December, “in a presidential election year, after the spring, no judges would go through except by the consent of the both the Republican and Democratic leaders.” This is the ultimate example of confirmation conversion. Democrats have turned a one-time request for a one-week delay in late September to ensure confirmation into a perpetual ongoing year-long blockade to prevent confirmation altogether.
Finally, Democrats are ignoring long-standing nominees to long-vacant judicial positions. The U.S. Court of Appeals for the Fourth Circuit, for example, is one-third empty. One North Carolina-based seat has been vacant since 1994, so long that it has been declared a judicial emergency. President Clinton’s nominees to that vacancy did not receive a hearing because Senator Jesse Helms opposed them. President Bush’s previous nominees did not receive a hearing because Senator John Edwards opposed them.
Thankfully, such home-state Senator opposition is no longer a problem as both North Carolina Senators strongly support the nomination of Chief U.S. District Judge Robert Conrad. The Senate unanimously confirmed him to that position just three years ago. And he has received the ABA’s highest rating, which Democrats once said was the “gold standard” for evaluating nominees. There was a time when any one of these factors – a judicial emergency vacancy, home-state Senator support, previous Senate confirmation, or the highest ABA rating – would have led to a hearing and confirmation. Today, all four factors together are not enough and Judge Conrad’s nomination has been languishing for nearly a full year.
Those are just some of the facts about the current confirmation obstruction campaign. It was not always this way, and it need not be this way today. Even in an election year, the Senate should do its confirmation duty.