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April 12, 2005

Hypocrites, all

The basic issue of holding up judgeships is the issue before us, not the qualifications of judges, which we can always debate. The problem is it takes so long for us to debate those qualifications. It is an example of Government not fulfilling its constitutional mandate because the President nominates, and we are charged with voting on the nominees.

The Constitution does not say if the Congress is controlled by a different party than the President there shall be no judges chosen. But that is sometimes how the majority has functioned.


I also plead with my colleagues to move judges with alacrity—vote them up or down. But this delay makes a mockery of the Constitution, makes a mockery of the fact that we are here working, and makes a mockery of the lives of very sincere people who have put themselves forward to be judges and then they hang out there in limbo.

--Senator Charles Schumer, D-NY, March 7, 2000.

There are still three very important nominees reported last year to be taken up. The distinguished majority leader and the distinguished minority leader had a colloquy last November 10 talking about them. I fully expect them to be voted up or down.
We should do our constitutional duty and vote up or vote down, not vote maybe. I am glad the majority leader has agreed to bring them to a Senate vote before the Ides of March. The nominees deserve to be treated with dignity and dispatch, not delayed for years.
The Chief Justice of the United States Supreme Court said:

Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote ... The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry, it should vote him up or vote him down.

Which is exactly what I would like.

--Sen. Patrick Leahy, D-VT, same day

It is time for the Senate to stop abusing its power over nominations. Over 200 years ago, the Framers of the Constitution created a system of checks and balances to ensure that excessive power was not concentrated in any branch of government. The President was given the authority to nominate federal judges with the advice and consent of the Senate.

The clear intent was for the Senate to work with the President—not against him—in this process. In recent years, however, by refusing to take timely action on so many of the President’s nominees, the Senate has abdicated its responsibility. By doing so, the Senate has seriously undermined the judicial branch of our government. This kind of partisan stonewalling is irresponsible and unacceptable. It’s hurting the courts, and it’s hurting the country.

--Sen. Edward Kennedy, D-MA, same day

I say to my good friends, the distinguished gentlemen from New York, Vermont, and Massachusetts, go to hell.

(Hat tip to Power Line for the first two quotes)

April 12, 2005 in Current Affairs | Permalink


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Why bother confirming them? DeLay will only call for their impeachment.

Posted by: Kade | Apr 13, 2005 2:52:17 PM

You know your blog is worth reading when you have your own trolls.

Posted by: TehBadPlace | Apr 14, 2005 3:49:07 PM

And your own cheerleaders.

Posted by: Kade | Apr 14, 2005 5:08:50 PM

Touche. I guess we both agree this is a good blog worth reading then?

Posted by: TehBadPlace | Apr 14, 2005 6:26:02 PM

I think it's good for an opposing point of view, but my statement wasn't a troll. I think the last thing someone who opposes "Judicial Activism" could ask for would be the appointment of more federal judges.

Posted by: Kade | Apr 14, 2005 7:32:09 PM

Bill Frist on Jim Lehrer, Mar 1, 2005:

    It is true that after 220 years of history in this country in the last Congress for the first time in history a judicial nominee came from the president to our body and we denied them, we denied them because of the use of filibuster in up or down vote for the first time ever and it didn't happen one time, it happened two, three, four, five, six, seven; it was a tool that's unacceptable and inconsistent with that advice and consent clause of the Constitution.

December 21, 1999:

    A long-running dispute over executive appointments flared again today as a Republican senator said he would block every one of President Clinton's nominees for federal judgeships until the president left office.

    The senator, James M. Inhofe of Oklahoma, said he would put personal "holds" on every judicial nominee submitted to the Senate for confirmation and urge other senators to do the same.

June 5, 1999:

    At the beginning of the year, Senate Judiciary Chairman Orrin G. Hatch (R-Utah) proposed Stewart, a political friend, for an opening as a federal judge in Utah. But so far the Clinton administration has been unwilling to nominate Stewart for the post. In response, Hatch has essentially shut down the confirmation process for existing nominees: He has not scheduled a confirmation hearing for any nominee to the federal bench -- 42 are now pending -- since January. "I am concerned about my Utah recommendation," Hatch told committee Democrats at a recent meeting.

    The conflict appears to mark the first time in 40 years that a senator has blocked all judicial confirmations. And as the battle drags on, its impact is extending far beyond the Beltway, affecting the pace of cases nationwide and potentially altering the long-term complexion of the federal bench and Clinton's judicial legacy.

    "I couldn't say this is a perversion of the process," said Sheldon Goldman, a political science professor at the University of Massachusetts who has studied court appointments extensively. "But I could say you are going to the brink of a constitutional crisis when you say, 'My man or nothing moves.' That's ominous."

June 24, 1999:

    Two years ago, President Bill Clinton nominated Ronnie White (an African-American candidate) to be a federal judge in St. Louis.

    A Missouri Supreme Court judge, White survived an FBI background check and got a favorable vote from the Senate Judiciary Committee. But he is no closer to the federal bench today than he was in June 1997.

So after years of being obstructionists, the GOP whines when 10 out of 280 appointments have been disputed.

Good title for your post. Wrong implied target, but good title. This Bush era Culture of Hypocrisy has many GOP players with very short memories.

Posted by: RealDCC | Apr 18, 2005 11:03:48 PM

You haven't shown hypocrisy unless you produce quotes from Frist supporting blocking judges, or from Hatch or Inhofe opposing. I'm not sure why you bring up the example of Ronnie White, who did receive a vote of the full Senate.

In any case, I'm not arguing that Republicans aren't hypocrites as well... although I'd say there's a qualitative difference between judges being blocked by the Senate majority and minority.

Posted by: Voice of Reason | Apr 19, 2005 11:46:35 AM

Well, Orrin Hatch attempts to avoid the appearance of hypocrisy by claiming "Two years ago, this latter tradition was attacked when the filibuster was used for the first time to defeat majority supported judicial nominations." (March 10, 2005). His weasel wording is "majority supported". He ignores the Republican history of obstructing Democratic judicial appointments as posted.
Q.E.D.: he's hypocritical.

As to the case of Ronnie White and to Frist's comment, consider this:

    Prior to 1996, when the Senate majority and the president were from opposing parties, senators usually deferred to the president with respect to lower-court judicial nominations. With the notable exceptions of the 1968 Fortas nomination and a failed Republican filibuster of H. Lee Sarokin in 1994, neither party filibustered the other's judicial nominations, and virtually all nominees received a hearing unless they were sent up after the presidential nominating conventions.

    All this changed in 1996. Rather than openly challenge President Clinton's nominees on the floor, Republicans decided to deny them Senate Judiciary Committee hearings. Between 1996 and 2000, 20 of Bill Clinton's appeals-court nominees were denied hearings, including Elena Kagan, now dean of the Harvard Law School, and many other women and minorities. In 1999, Judiciary Chairman Orrin Hatch refused to hold hearings for almost six months on any of 16 circuit-court and 31 district-court nominations Clinton had sent up. Three appeals-court nominees who did manage to obtain a hearing in Clinton's second term were denied a committee vote, including Allen R. Snyder, a distinguished Washington lawyer, Clinton White House aide, and former Rehnquist law clerk, who drew lavish praise at his hearing -- but never got a committee vote. Some 45 district-court nominees were also denied hearings, and two more were afforded hearings but not a committee vote.

    Even votes that did occur were often delayed for months and even years. In late 1999, New Hampshire Republican Bob Smith blocked a vote on 9th U.S. Circuit Court of Appeals nominee Richard Paez for months by putting an anonymous hold on the nomination. When Majority Leader Trent Lott could no longer preserve the hold, Smith and 13 other Republicans tried to mount a filibuster against the vote, but cloture was voted and Paez easily confirmed. It had been over four years since his nomination.

    When his tactics on the Paez and Marsha Berzon nominations (Berzon was filibustered along with Paez, more than two years after her nomination) were challenged, Smith responded with an impassioned floor speech in defense of the judicial filibuster: "Don't pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge that I don't think deserves to be on the circuit court ... . That is my responsibility. That is my advice and consent role, and I intend to exercise it."

    The public spectacle that occurred the one time that Republicans did wait for a floor vote to kill a nomination confirmed the untenability of their strategy when openly exposed. Ronnie White, an African American judge from Missouri, was nominated for a district judgeship. He was opposed by then-Senator John Ashcroft, who was hunting for a re-election campaign issue; to support Ashcroft, Republicans voted in lockstep against the nomination. Afterward, some of them claimed they hadn't known White was African American. [This is known as the "Ronald Reagan defense", where protestations of "we just didn't know" are offered without a tinge of embarassment as to how unlikely that lie was. - RealDCC] After the embarrassing fight, one Republican staff member acknowledged that "[I]t's just better to kill them in committee."

    But when the Republicans took over the White House in 2001 and the Senate in 2003, things sped up. In 2003, Hatch announced that he would abandon the "blue-slip system" he had insisted on since 1995, whereby a senator could block action on a nominee from his or her home state; North Carolina's Jesse Helms had used this power to block every one of three black candidates to the 4th U.S. Circuit Court of Appeals. Anonymous floor holds were abolished, as was the rule requiring that at least one minority-party senator on the Judiciary Committee must agree to a vote on a nominee if any committee member objects. These rules changes left the Democrats with only the filibuster.

    Frist's solution to the current stalemate on judicial nominations is a "simple return to the 200-year of tradition on judges." Frist's memory and history are obviously selective. It was just five years ago, in March 2000, that Frist himself participated in the filibuster against Paez after Lott finally overrode the Smith hold. In light of the ferocity with which Republicans stonewalled Clinton's nominees, Frist's entire case folds; the 10 nominees filibustered by Democrats hardly compare to the 65 Clinton nominees denied a vote by the Republicans' under-the-radar procedural maneuvers.

As I wrote before, after years of being obstructionists, the GOP gets power and changes the rules, and then whines when 10 out of 280 appointments have been disputed. The Republicans have become mad with power and many now regularly drink from the Well of Hypocrisy.

Good title for your post. Wrong implied target, but good title. This Bush era Culture of Hypocrisy has many GOP players with very short memories. Some obviously post here.

Posted by: RealDCC | Apr 19, 2005 7:01:54 PM

Well said, RealDCC. I would add that a Dem (Leahy, Schumer, etc.) complaining about filibusters is different than the GOP's proposal to ban them altogether. Dems had the White House and Congress for many years, but never banned the procedure, although they had the power to do so. That is for wimps who can't handle having a whopping 10 (now 9)judges rejected out of over 205. Hatch's committee blocked 65 Clinton judges. The GOP is the side that is hypocritical here.

Posted by: Chris | Apr 25, 2005 3:06:33 PM

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