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Democrats Against the Filibuster
by Andrew M. Alexander
27 October 2003Janice Brown

Bill Clinton finally weighed in on the Senate Democrats' filibuster of Bush's judicial nominees: "I simply ask the United States Senate to heed this plea, and vote on the highly qualified judicial nominees before you, up or down."

Bill Clinton has come out swinging against Tom Daschle's filibuster of President Bush's judicial nominees:
I simply ask the United States Senate to heed this plea, and vote on the highly qualified judicial nominees before you, up or down.
The only problem is, Clinton made that argument during his 1998 State of the Union speech. Now that George W. Bush is in the White House, the rules seem to have changed.

Senate Democrats are trying just about everything to keep Bush's judicial nominees off the bench. Miguel Estrada had majority support in the Senate but was denied a vote for almost two and one-half years. Priscilla Owen was nominated in May 2001 and her nomination is being filibustered.

Remember the "judicial vacancy crisis" you heard so much about during the Clinton years?  It seems to have vanished; I can't find it anywhere. Instead, Democrats have openly embraced ideology as a screening device, and very few minorities and women are making it through.

The Strategy: Obstruct Circuit Court Nominees
With 20 vacancies on the federal appellate courts across the country and nearly half of the total judicial emergency vacancies in the federal courts system in our appellate courts, our courts of appeals are being denied the resources that they need, and their ability to administer justice for the American people is being hurt.
Senator Patrick Leahy (D-VT), during the Clinton administration
After President Bush took office, the Democrats focused their obstruction campaign almost exclusively on the circuit courts. By confirming lower-level district court judges rather than circuit court judges, they could claim to be cooperating with Bush while leaving Clinton's appointees in ideological control of the appeals courts.

Meanwhile, 8 of Bush's first 11 circuit court nominees were left waiting more than a year for a full Senate vote. While Democrats controlled the Senate, the number of vacancies on the circuit courts soared as high as 33, and Democrats kept that number right around 30 until Republicans regained control of the Senate in January of 2003.

According to John Nowacki, Director of Legal Policy at the Free Congress Foundation, Senate Democrats approved just 53% of President Bush's circuit court nominees during his first two years in office. By way of comparison, Carter saw 100% of his circuit court nominees confirmed, Reagan 95%, George H.W. Bush 96%, and Clinton 86% (with a Senate of his own party).  The Democrat strategy is simply to block as many circuit court nominees as possible until the presidential election.

Delay, Delay, Delay
I have said on the floor, although we are different parties, I have agreed with Governor George Bush, who has said that in the Senate a nominee ought to get a vote, up or down, within 60 days.
Senator Patrick Leahy (D-VT), during the Clinton administration
The President should understand that the Senate does not need arbitrary deadlines.
Senator Patrick Leahy (D-VT), during the Bush administration
It is clear from their performance that Senate Democrats do not observe any deadlines, arbitrary or otherwise, when it comes to acting on President Bush's judicial nominees. Two of Bush's circuit court nominees have been waiting for a vote since May 9, 2001, and several others have been waiting almost two years. The following is a list of circuit court nominees who have been waiting longer than Patrick Leahy's 60-day time limit:

Miguel Estrada, DC Circuit Court of Appeals
Nominated: May 9, 2001
Partner, Gibson, Dunn & Crutcher, Washington, DC
Withdrew on September 4, 2003

Terence W. Boyle, 4th Circuit Court of Appeals
Nominated: May 9, 2001 
(originally nominated by President George H.W. Bush)
US District Court Judge, Eastern District of North Carolina

Priscilla Owen, 5th Circuit Court of Appeals
Nominated: May 9, 2001
Texas Supreme Court Justice

Charles W. Pickering, Sr., 5th Circuit Court of Appeals
Nominated: May 25, 2001
US District Court Judge, Southern District of Mississippi

Carolyn B. Kuhl, 9th Circuit Court of Appeals
Nominated: June 22, 2001
California Superior Court Judge

David W. McKeague, 6th Circuit Court of Appeals
Nominated: November 8, 2001
US District Court Judge, Western District of Michigan

Susan Bieke Neilson, 6th Circuit Court of Appeals
Nominated: November 8, 2001
Michigan Circuit Court Judge

Henry W. Saad, 6th Circuit Court of Appeals
Nominated: November 8, 2001 (originally nominated by President George H.W. Bush)
Michigan Court of Appeals Judge

Richard E. Griffin, 6th Circuit Court of Appeals
Nominated: June 26, 2002
Michigan Court of Appeals Judge

William H. Pryor, 11th Circuit Court of Appeals
Nominated: April 9, 2003
Attorney General of Alabama

Claude A. Allen, 4th Circuit Court of Appeals
Nominated: April 28, 2003
Deputy Secretary of Health and Human Services

D. Michael Fisher, 3rd Circuit Court of Appeals
Nominated: April 28, 2003
Pennsylvania Attorney General

William Gerry Myers, III, 9th Circuit Court of Appeals
Nominated: May 15, 2003
U.S. Department of the Interior Solicitor
Nominees deserve to be treated with dignity and dispatch--not delayed for two and three years. We are seeing outstanding nominees nitpicked and delayed to the point that good women and men are being deterred from seeking to serve as federal judges. Nominees practicing law see their work put on hold while they await the outcome of their nominations. Their families cannot plan.
Senator Patrick Leahy (D-VT), during the Clinton administration

I don't think we should have litmus tests for members of the sub-Cabinet, the Cabinet or the judges. . . . We're not going to do that. We're going to have hearings. We're going to have the process vetted as soon as possible. And I think we should have up-or-down votes in the committee and on the floor. So the answer is, no, there is not litmus test and there will not be.
Senator Harry Reid (D-NV), during the Clinton administration
I thought that if the President nominated them, they had a fair hearing, and they were reported out, my only decision was whether or not they were qualified--not whether they were ideologically opposed to me or to how I feel or what I believe...When you have people who have had a hearing, who are qualified, yet they won't be reported out for a vote on the Senate floor, that is pure politics and that is the height of irresponsibility. The Republican leadership is being totally irresponsible.
Senator Tom Harkin (D-IA), during the Clinton administration
For whatever reason, possibly senatorial fears of being labeled partisan, legitimate considerations of ideological beliefs seem to have been driven underground. It's not that we don't consider ideology, we just don't talk about it openly.
Senator Charles Schumer (D-NY), during the Bush administration
Senate Democrats impose a strict pro-abortion litmus test on Bush's circuit court nominees. The judges criticized most fiercely by Senate Democrats all have some sort of public pro-life record. California Supreme Court Justice Janice Brown dissented in a case overturning a parental consent law, and Judge Charles Pickering, Sr., advocated a constitutional amendment banning abortion when he was an elected official, for example. Both are likely filibuster targets.

Filibustering Mainly for Fun and Profit
We are paid to vote either yes or no -- not vote maybe. When we hold a nominee up by not allowing them a vote and not taking any action one way or the other, we are not only voting "maybe'' but we are doing a terrible disservice to the man or woman to whom we do this.
Senator Patrick Leahy (D-VT), during the Clinton administration
A nominee is entitled to a vote. Vote them up; vote them down…It is our job to confirm these judges. If we don't like them, we can vote against them. That is the honest thing to do.
Senator Diane Feinstein, (D-CA), during the Clinton administration
It is true that some Senators have voiced concerns about these nominations. But that should not prevent a roll call vote which gives every Senator the opportunity to vote "yes'' or "no.''
Senator Edward Kennedy (D-MA), during the Clinton administration
The use of the filibuster to prevent a vote on a circuit court nominee is unprecedented, according to the Free Congress Foundation's John Nowacki. Senate Democrats have filibustered circuit court nominees not once, but three times.

Democratic filibusters have already caused one highly qualified Hispanic nominee, Miguel Estrada, to withdraw, and Democrats continue to filibuster the nomination of Texas Supreme Court Justice Priscilla Owen and Alabama Attorney General Bill Pryor. California Supreme Court Justice Janice Brown and Justice Charles Pickering, Sr. may be next.

But I also respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor.
Senator Joseph Biden (D-DE), during the Clinton administration

The Democrats & Race
And even though the criticism stings, the fact is that, on average, women and minorities take longer to go through this Senate than white males do. Some women, some minorities have gone through very quickly, but most have taken longer.
Senator Patrick Leahy (D-VT), during the Clinton administration
I urge in the time remaining in this session that he, as the head of his party, as their Presidential nominee, call the Republican leader of the Senate and say that all of these women, all of these minorities, in fact, all of the people who have been sitting here for well over 60 days waiting for a vote on their nomination, let them have a vote.
Senator Patrick Leahy (D-VT), during the Clinton administration
For Republicans to claim that those who opposed the Estrada nomination were motivated by anti-Hispanic sentiment is wrong.  It is offensive, base and baseless.
Senator Patrick Leahy (D-VT), during the Bush administration
...it is astonishing that Republicans continue to assert that those who oppose Mr. Estrada’s confirmation are anti-Hispanic.  That is such an outright and obvious untruth.  Yet we see some of these untruths recycled again and again in news reports and commentaries, despite the facts.  These baseless allegations for purposes of wedge politics and partisan advantage are wrong and dangerous.
Senator Patrick Leahy (D-VT), during the Bush administration
Democrats crudely injected race into the judicial selection process for political advantage throughout the Clinton administration.  After the confirmation of Hispanic Clinton nominee Richard Paez, Vice President Al Gore stated, ''We've seen a troubling pattern of the Republican Party standing against qualified judicial nominees who happen to be women and minorities." And after the full Senate rejected African-American nominee Ronnie White, President Bill Clinton stated, "The Republican-controlled Senate is adding credence to the perception that they treat minority and women judicial nominees unfairly and unequally."

Now that George W. Bush is in office, Senator Leahy claims injecting race into the process is "wrong and dangerous." Go figure.

The irony of the situation is that Democrats actually do oppose certain circuit court nominees on the basis of their race or gender -- but not because Democrats are racist or sexist. Rather, Senate Democrats oppose qualified conservative minorities and women because they are loathe to place such judges one step from the Supreme Court.

Miguel Estrada The rejection of Honduran-born immigrant Miguel Estrada is a case in point. Speaking little English when he arrived in America, Estrada went on to attend Columbia University and Harvard Law School, where he was Editor-in-Chief of the law review.  A veteran of both Clinton and Bush Justice Departments, he has argued 15 cases in front of the Supreme Court, winning 10.

But Democrats stalled and filibustered his nomination for two and one-half years, causing Estrada to withdraw.

Vernadette Ramirez Broyles, an attorney for Atlanta-based Lawgical Counsel, commented:
As the first Hispanic on the D.C. court, and a likely future candidate to the Supreme Court, Estrada would have single-handedly done more for Latinos -- by destroying stereotypes, blazing new opportunities and elevating us in the eyes of the mainstream -- than any diversity program or race-based quota.
Democratic Senators claimed they needed to see internal memoranda from when Estrada worked at the Justice Department. But they couldn't find a single former solicitor general -- including those who served under Democrat Presidents -- who agreed Estrada should turn over those privileged documents.

The Democrats took Estrada's withdrawal as a sign of weakness; their next minority target is probably California Supreme Court Justice Janice Rogers Brown.

Janice Brown Born to sharecroppers in Greenville, Alabama, Justice Brown graduated from UCLA law school and in 1996 became the first black woman on the California Supreme Court. She received 76% of the vote in her most recent election and wrote more majority opinions for the Court in 2001-2002 than any other Justice.

A group of 15 California law professors commended Justice Brown on her "open-minded and thorough appraisal of legal argumentation -- even when her personal views may conflict with those arguments," and all of her former colleagues on the California Third District Court of Appeal have endorsed her.  

Commenting on the Democrats' likely filibuster, St. Louis University law professor Eric Claeys commented, "
The last thing they want is a black woman conservative who could be named to the Supreme Court."

This Partisan Stalling is Unconscionable
This partisan stalling, this refusal to vote up or down on nominees, is unconscionable. It is not fair. It is not right. It is no way to run the federal judiciary.
Senator Patrick Leahy (D-VT), during the Clinton administration

Andrew M. Alexander is Co-Editor of IntellectualConservative.

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