Halting the Judgernaut

As Capitol Hill adjusts to Vermont Senator Jim Jeffords's earthshaking repudiation of the Republican Party, the Senate Judiciary Committee is bracing itself to be the center of the aftershocks. The judicial branch of government, after all, is where a president is likely to have his most far-reaching impact; the judges he appoints will last much longer than the one or two terms he serves. And the Judiciary Committee--which is a key venue for debate about potent legislative issues such as abortion, school prayer, flag burning, and civil rights--is also the primary battleground in judicial-confirmation fights. Thus, with George W. Bush's first slate of nominees for the federal bench waiting for hearings, the most resounding political clashes of the summer are likely to occur on the Judiciary Committee's turf.

When Jeffords abandoned the Republicans, he threw control of Senate committees to the Democratic Party, providing Dems on the Judiciary Committee with the power to strangulate nominations in committee. (Actually, as of this writing, Republicans--aware of how defiantly they refused to allow many of Bill Clinton's nominations to get beyond the Judiciary Committee, and afraid of payback--are trying to force the Democrats to permit a full Senate vote for every judiciary nominee. A politically foolish position that will likely come to a quick resolution, this could bring all Senate business to a halt.) Given a free hand to nominate and confirm judges, Bush and the Senate Republicans would no doubt populate the federal bench with an army of Antonin Scalia clones--a legion of judges who, though perhaps ethnically diverse, share the extreme views of the Court's most conservative jurist. Indeed, the first batch of nominees the president sent to the Senate for confirmation has already made this clear. One logical response to such nominees would seem to be simply to block their consideration--especially since that was the Republican response to Clinton nominees whom the GOP considered to be too liberal.

But early signs indicate that the newly Democrat-controlled Judiciary Committee, along with the Senate as a whole, is taking a less direct and more wide-ranging approach, one that makes use of several different strategies at once while trying to minimize the danger of a public backlash. This highlights an important question: Is it worth letting all but the most conservative judges onto the federal bench--where they will preside for lifetime appointments, potentially lending important appeals courts a conservative coloration for up to 30 or 40 years--in order not to appear "obstructionist"? For some Democrats concerned with winning re-election, the answer may be yes. Still, if they're smart and stick together, the Democrats on the Judiciary Committee may be able to ensure that only the more moderate of Bush's nominees come to a full Senate vote--and to demonstrate the wisdom of their case to the American public.

"Don't Mess with Vermont"

How successful the Democrats are in preventing the confirmation of conservative judges will depend heavily on the committee's new chairman. A soft-spoken, liberal Vermonter, Patrick Leahy is a 27-year Senate veteran who has distinguished himself from many of his colleagues with his integrity and lack of ego. Smart and unafraid to play political hardball when necessary, he is adept at diffusing tension with gentle humor. (The day after the Jeffords switch, for example, "Don't Mess with Vermont" bumper stickers--attributed to Leahy--appeared around Washington, D.C.)

Leahy replaces Utah Senator Orrin Hatch--a fierce conservative whose favorite topic in recent committee sessions has been his own evenhandedness--as the ranking majority member on the committee. (Transcripts of recent hearings reveal Hatch to be remarkably, repetitively taken with his own "fairness.") Though Hatch has worked with Democrats on occasion, he fights hard for conservative Republican nominees and has the battle scars from the Robert Bork and Clarence Thomas Supreme Court nominations to prove it.

Leahy and Hatch consider themselves close friends and generally work well together. During Hatch's quixotic presidential run through early 2000, Leahy offered "to speak for him or against him, whichever would help more." But beneath this geniality, both sides are girding for war. Within days of Jeffords's announcement, Hatch was warning Democrats that "nobody's going to push me around." Leahy, for his part, has shown himself unafraid to take on the Republicans: He has challenged the GOP's hypocritical statements about the "quick pace" of Clinton nominations during Republican control of the committee and engineered a walkout from a hearing in which he felt the Republicans were trying to strong-arm Democrats into approving Bush nominees.

But for the first time in seven years, the Democrats have the numbers--if not literally (at this writing, the Senate leadership is negotiating whether the party balance on the committee will remain evenly split or a Democrat will be added to give the Dems a one-person advantage), then at least in terms of power. Majority status gives Leahy the gavel--and with it, the power to schedule and time hearings. Democrats now control the process: They decide when (and even if) nominees are brought up, how zealously they are interrogated, and how quickly they get voted on. And Senate Democratic aides say that Leahy is ready to take a much tougher line than others have in the past.

The recent debate over Ted Olson's nomination as solicitor general suggests how potent the Democrats' new majority status on the committee can be, if only they can muster the courage to exercise it. Erstwhile Senate Majority Leader Trent Lott was forced to discharge Olson's nomination from the Judiciary Committee (he did this under the bargain struck relating to the 50–50 Senate divide) the day Jeffords announced his switch: Lott knew that if he waited, the Democrats could use their new power in the Judiciary Committee to withhold the nomination from the floor. Moreover, after seeing Olson get voted in by the Senate--albeit by a razor-thin majority--Democrats surely understand that stopping someone is easier in committee than on the Senate floor, where there is the danger that some conservative Democrats will join the Republicans in crucial votes, as Georgia's Zell Miller and Nebraska's Ben Nelson did on Olson.

But now that the Democrats possess the power in the Judiciary Committee, will they be willing to use it? After failing to block Attorney General John Ashcroft and Solicitor General Olson, some Democrats said, in effect, "Well, we got enough votes to demonstrate that we could block a nomination--but we didn't do it because these were only cabinet appointments, not Supreme Court justices, which are lifetime appointments." Fair enough. But lower-court federal judges get appointed for life, too. Do the Democrats have the will to scrutinize and oppose district and circuit court candidates?

Whom to Oppose?

Democrats are still strategizing about whom they should oppose. This requires a calculated analysis not just of the nominees' records and the courts for which the judges have been nominated, but of public opinion. Democrats have seen how the perception of obstructionism or intransigence has sometimes hurt the Republicans--most notably after the government shutdown in 1995, during Clinton's impeachment in 1998, and last month when the GOP lost Jeffords--and don't want to be perceived that way themselves.

Both Leahy and the new majority leader, South Dakota's Tom Daschle, have said that they will work to prevent an ideological court packing and that they want "good, moderate, middle-of-the-road, credible" nominees. But already a number of Bush's nominees fall outside that description. This is particularly significant right now, because--after years of Republicans stonewalling Bill Clinton's nominees--there are many vacancies, including 31 openings on federal appeals courts. Several circuit courts of appeal are very closely divided between liberals and conservatives. (The tiny First Circuit, for example, whose six judges cover Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico, has one opening and leans barely Republican; and the Third Circuit, which includes Delaware, New Jersey, Pennsylvania, and the Virgin Islands, is evenly divided and has two vacancies.) Just a few Bush appointees could tilt the judicial balance of the country in a decidedly conservative direction for a long time to come.

So Democrats considering circuit court nominees need to examine not just whether the prospective lifetime appointee has views so extreme as to be out of the mainstream, but whether adding that person to a court will change the ideological complexion of a particular circuit.

Given these parameters, there are several clear targets among the first group of Bush nominees. For instance, two Fourth Circuit nominees cry out for opposition. Terrence Boyle, chief judge of the U.S. District Court of the Eastern District of North Carolina, is a former aide to Senator Jesse Helms and, not surprisingly, is extremely conservative. He was already denied a spot on the court of appeals in 1991, when he was nominated by President George H.W. Bush, but the Senate did not act on his nomination. Helms retaliated by blocking all of President Clinton's nominees to fill North Carolina's Fourth Circuit vacancies. (Helms's desire to get Boyle on the court is ironic given Helms's repeated statements over the past several years that "there is no need to put more judges on that court because to do so would make it less efficient.")

The other nominee to the Fourth Circuit, South Carolina District Judge Dennis Shedd, is equally conservative; he served as chief counsel and staff director under former Judiciary Committee Chairman Strom Thurmond, who is now a senior committee member. Although Shedd has already attracted much opposition from civil rights groups, it will require coordinated strength to block him, given the tradition of deference to nominees who once worked in the Senate, even if only in a staff capacity.

But the Fourth Circuit already tilts heavily to the right. In contrast, the Sixth Circuit (which covers Michigan, Ohio, Tennessee, and Kentucky) and the D.C. Circuit are closely divided. Thus, Miguel Estrada, nominated for the D.C. Circuit, and Jeffrey Sutton, nominated for the Sixth, are judicial conservatives whom Democrats could confidently and appropriately oppose.

After the Supreme Court, the D.C Circuit is generally seen as the most powerful court in the nation, because of its role in interpreting statutes and agency decisions and because it has historically served as a springboard for potential Supreme Court nominees. Adding Estrada--who was a law partner of Ted Olson and is known for sharing the judicial philosophy of Justices Scalia and Thomas--to that court, along with another Bush nominee, the conservative John Roberts, would significantly enhance a slight conservative majority on this key bench.

The Sixth Circuit is even more closely divided. A former state solicitor from Ohio, Sutton--who has argued a number of times in the Supreme Court for expanded state power and for voiding congressional initiatives--has already been the focus of opposition. But another Sixth Circuit nominee, Ohio Supreme Court Justice Deborah Cook, also deserves a close look. In one representative decision, she denied a blind woman's request to be admitted to medical school because of the undue burden it would have placed on the school.

The 10th Circuit (which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) also is narrowly divided. The nomination to this court of Michael McConnell, a Federalist Society conservative and a professor at the University of Utah, has already generated opposition because of his extremist interpretation of the religion clauses of the First Amendment and their potential application to a variety of social issues ranging from school vouchers to gay rights.

Democrats can prevent Bush's nominees from being confirmed in several ways. First, of course, is to vote them down, either in committee or on the floor. Second is to delay their confirmation hearings indefinitely, as the Republicans did for so many Clinton nominees. (A variation on this option is to use control of the process to lengthen investigative hearings when that would be effective.) Expect Leahy to make use of both tactics. But more important is a third approach, which is to avoid nasty committee fights and use the potential power of a unified Democratic majority--for now, the committee will follow the caucus party line and vote up or down together--to influence the White House not to nominate right-wingers in the first place. It is therefore incumbent on the Bush White House, which until now has given only lip service to the idea of consultation with the Senate, to work with Leahy and the Democrats if it wants its nominees to be confirmed in a timely fashion.

Finally, several changes in procedure will slow down the process while adding an opportunity for more information and fairness. Leahy has already promised to reinstate the use of evaluations by the American Bar Association before any hearings. (This nonpartisan analysis of candidates, which every president since Dwight D. Eisenhower has used in considering nominees, was eliminated by George W. Bush.) Leahy is also likely to hold quick hearings for less controversial nominees and for nominees who are designated for courts with the greatest need before turning to the possible challenges. In this way, he can accumulate public support that he can later use in opposing the more conservative or controversial nominees. And he will probably not hold hearings for more than one nominee at a time--something that makes abundant sense but that the Republicans failed to do.

The prevailing view has been that nominees are presumed to be confirmable, unless senators or interest groups find something "wrong" with them. Some legal scholars have proposed the idea of requiring nominees to demonstrate why they should be confirmed, and there are signs that Leahy is open to this approach.

The Senate has an important role to play in evaluating and challenging individuals who are being appointed to a lifetime job of interpreting the Constitution. While Republicans are likely to cry "Bork!" whenever a nominee is criticized (even though the same Democratically controlled Congress that rejected Bork overwhelmingly confirmed Scalia), Democrats should not shy away from opposing any (and even many) of President Bush's nominees. Nor should they be tempted to give free passes to minority candidates if those candidates are too conservative. The Constitution says that the Senate will give its advice and consent on all nominations. Most Americans don't want a judiciary slanted sharply in either direction. We will soon see whether the new majority in the Senate has the guts and the ability to make a credible case to the American people that President Bush should not have the unilateral authority to shape the judicial branch in his conservative image.

Who's Who on the Senate Judiciary Committee

The Democrats

The committee chair: Patrick Leahy of Vermont.

The big guns: Joseph Biden of Delaware and Ted Kennedy of Massachusetts. Both
Biden and Kennedy are powerful senators with the potential to play major roles,
but each chairs another major committee and may be focusing his attention

The other liberals: Charles Schumer of New York and Dick Durbin of Illinois.
Schumer will lead the liberal charge when Biden and Kennedy aren't around, and
will try to use his place on the committee to keep from being upstaged by Hillary
Clinton, the junior senator from his state. Durbin is an intelligent, aggressive
questioner; he was one of the earliest Democrats to press Solicitor General Ted
Olson during his nomination hearings. Leahy worked hard to get Durbin back on the
committee after an absence.

The rest of the team: Dianne Feinstein of California, Herb Kohl of Wisconsin,
newcomer Maria Cantwell of Washington, and Russell Feingold of Wisconsin. All of
these--with the occasional exception of Feingold--are loyal votes within the
Democratic caucus. Feingold at times bucks the caucus with--depending on your
point of view--his idealism or iconoclasm. But even Feingold, who voted for
Attorney General John Ashcroft and other administration nominees, is likely to
fall in step with his party against extremist judicial nominees, because he feels
the standard of deference Bush should get for lifetime appointees is lower than
for short-term political appointments.

The Republicans

The ranking member: Orrin Hatch of Utah.

The elder: Strom Thurmond of South Carolina. The senior member of the
committee, and of Congress, he attends most debates; but it's evident that Hatch
and other senators frequently have to compensate for his infirmity. With the
change in power, Republicans may move him to another committee and replace him
with a more engaged advocate.

The hard-liners: John Kyl of Arizona and Jeffrey Sessions of Alabama. Kyl and
Sessions will likely provide Hatch with his most reliably conservative support in
fights with the Democrats. Kyl has already proved to be quite an attack dog for
the Bush White House--an extreme partisan who provokes controversy rather than
seeks solutions. During the Ashcroft hearings, he tangled frequently with Leahy
and other Democrats, without ever advancing a useful argument. Sessions is quite
conservative, illogical, and hypocritical: Three years ago, he proposed a
juvenile-justice bill that would have allowed 14-year-olds to be tried as adults
and would have put children and adults together in prisons. Most observers credit
Sessions with blocking consideration of judges like Richard Paez, whom Clinton
nominated to the Ninth Circuit and who waited more than 1,500 days just to be
voted on.

The moderate: Arlen Specter of Pennsylvania. Specter is the only Republican on
the committee who might join the Democrats in opposing a nominee. Many of the
nominees to come before the committee will be far more conservative than he is,
particularly on issues he cares deeply about, such as reproductive choice and
church-state separation. Some observers predict that Jeffords's defection will
embolden Specter to thrust himself into the spotlight he enjoys by displaying
more independence in his Judiciary Committee role.

The rest of the team: Charles Grassley of Iowa, Sam Brownback of Kansas, Mitch
McConnell of Kentucky, and Mike DeWine of Ohio. DeWine is the only one of this
gang who could be considered a moderate. The rest are conservatives.