With the 107th Congress returning to its second session, it is time to evaluate the record of
the first session in handling President Bush's judicial nominations. The report card for the U. S.
Senate for last year shows failing grades. Neither political party acquitted itself well, but
Democrats certainly deserve an "F." For several years, Demo leaders railed at the GOP-controlled Senate, giving Republicans an "F" for their handling of Clinton's judicial nominees
(although the GOP ratified 373 selections and rejected only one). Consider just a small sample
of Democrat leaders' outcries.
The current Senate Judiciary Committee Chairman Patrick Leahy argued in 1997 that "A
President should be given a great deal of latitude on who he nominates to the Federal courts."
And in 2000, the current Senate Majority leader Tom Daschle moaned that "There is a dire
shortage [of judges on the federal bench]--we have a judicial emergency right now, throughout the
country. And it's important for us to respond to that emergency, confirm the many, many
judges whose nominations are still languishing either in [the Senate Judiciary] Committee or on
the floor" [there were substantially fewer vacancies then than there have been in 2001 under the Democrat-controlled Senate].
The statistics concerning judicial nominations during 2001 reveal the Democrats'
hypocrisy and strongly refute their claims of bipartisanship in their running of the Senate.
During the years 1981-2000, the Senate confirmed an average of 45 nominees/year. During
2001, the Senate confirmed only 28 of President Bush's selections. Consider the following picture
of the federal judiciary at the end of 2001:
No. of
Bush Nominees | No. Confirmed | % Confirmed | Vacancies
Remaining |
| 64 | 28 | 43% | 96 |
This dismal picture comes into clearer focus when the allocation of vacancies is
examined. Most of the confirmations have come in the less important district courts, and fewer in the increasingly powerful courts of appeals:
| | No. of Bush Nominees | No. Confirmed | % Confirmed | Vacancies Remaining |
| District Courts | 36 | 22 | 61% | 66 |
| Courts of Appeals | 28 | 6 | 21% | 30 |
It is also most informative to analyze the amount of time which the Senate has had to
consider judicial nominees. President Bush made his first 11 nominations on May 9, 2001. Only three of these 11 have had a Committee hearing. Indeed, of the approximately three dozen Bush nominees still awaiting Senate action, 31 have not even had a hearing. Exacerbating the situation is the fact that, as Court Watch recently reported to you, President Bush has sent his judicial nominations to the Senate in an unusually expeditious manner. The following data show this:
Date that President submitted his first judicial nominations to the Senate:
| Reagan | — | July 9th |
| Bush, I | — | August 4th |
| Clinton | — | August 6th |
| Bush, II | — | May 9th |
Despite President Bush's speedy action in nominating judicial candidates, the Senate's grade is an "F" when one considers the confirmation rates for the first year of presidential terms over the past 20 years:
| Reagan | — | 91% |
| Bush, I | — | 62% |
| Clinton | — | 57% |
| Bush, II | — | 43% |
The bottom line of the Senate's dalliance with crucial judicial vacancies during 2001 is that the percentage of federal judges appointed by more activist/liberal presidents is steadily rising, as evidenced by the percentage of currently active judges categorized by appointing presidents:
| Bush, II | — | 3.7% |
| Clinton | — | 47.4% |
| Bush, I | — | 21.6% |
| Reagan | — | 20% |
| Carter | — | 5.5% |
In other words, only 45.3% of active judges today were named by GOP (i.e., supposedly
restraintist/conservative) presidents, while 52.9% were nominated by Democrat (i.e., supposedly activist/liberal) presidents.
In the light of this extensive body of evidence regarding federal judicial vacancies and nominations, it is obvious that the U. S. Senate during 2002 has the constitutional obligation to raise its failing grade and act much more expeditiously (whether for or against) on judicial nominations. "Justice delayed is justice denied," as has been said. It is also obvious that the elections of 2002 are vitally important to the future course of America's courts and America's culture. Court Watch will pursue these themes in later dispatches. STAY TUNED, AND
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