The Free Congress © Commentary:

Addressing the 'Judicial Vacancy Crisis'

By John Nowacki
August 1, 2001

Any week in which the Senate does not confirm three judges is a week in which the Senate is failing to address the vacancy crisis. Any fortnight in which we have gone without a judicial confirmation hearing marks 2 weeks in which the Senate is falling further behind. -- Senator Patrick Leahy (D-VT)

When Senator Leahy spoke those words in a January, 1998, Senate floor speech, there were 83 vacancies in the Federal courts -- 60 in the district courts and 23 in the appellate courts. Leahy, the Ranking Democrat on the Judiciary Committee, had been talking of a "vacancy crisis" for months, and even when the number of vacancies dropped significantly, he continued his warnings of a crisis in the judiciary.

Today, Senator Leahy is Chairman of the Judiciary Committee, in control of when nominations hearings are scheduled, who gets a hearing, and when the Committee votes to report nominations to the full Senate. Today, there are 107 vacancies in the Federal courts -- 75 in the district courts and 32 in the appellate courts. And as of today, only 4 of the 29 judicial nominations sent to the Senate since early May have had a hearing. Only three have been confirmed.

Although there are officially 107 empty judgeships, by Senator Leahy's own reckoning the figure is much higher. Just days before the November election, he announced that the "truer measure of vacancies" would include the additional 69 judgeships he wants created -- today, that "truer measure" amounts to 176 vacancies.

Now, Leahy insists that he is moving forward with confirming judges, though he doesn't say much about the vacancy crisis anymore. At various meetings of the Judiciary Committee, he has proudly announced that he scheduled the first nominations hearing 10 minutes after the Senate reached a post-Jeffords-defection organizing resolution.

That hearing was for three nominees -- apparently a good start, though one was a former Clinton nominee and the others were nominated for a three-judge court with two vacancies. His second hearing, however, held on Tuesday, was for just one judicial nominee; he ran out of former Clinton nominees rather quickly.

In the last Congress, when the Republicans were dealing with Bill Clinton's judicial nominees, they averaged 5 per hearing -- 1 for the appeals courts and 4 for the district courts -- bringing Clinton's confirmation total to 374, just shy of Ronald Reagan's two-term confirmation record.

Before Jeffords transferred control of the Senate, Republicans had scheduled a hearing for 3 of President Bush's appeals court nominees -- two weeks after they were nominated. Democrats objected to having the hearing so soon, though, and since then, there has been no indication they will move those particular nominations for quite a while. In fact, when Leahy listed his priorities for the Committee yesterday, nominations were one of the last things he mentioned.

This decrease in the number of nominees per hearing is just part of the Democrats' obstruction strategy. Several weeks ago, Senator Charles Schumer held a Judiciary subcommittee hearing on whether ideology should be considered in the Senate's confirmation process. In another hearing postponed earlier this week, Schumer intended to question whether nominees should bear the burden of proof in confirmations, a departure from the Senate's traditional practice of encouraging Senators who oppose a nominee to actually come up with a valid reason for their opposition. By shifting this burden onto nominees, Democrats apparently hope they can force Bush nominees to guarantee in advance how they will rule on specific issues that may come before them -- something that ties in with the earlier attempt to justify using ideological litmus tests.

Schumer has also announced plans for two additional hearings: one to examine just what "advise and consent" really means, and another to brand the return to Federalism in some Supreme Court decisions as a form of judicial activism.

That's all a far cry from the full Committee chairman's sentiments of a few years ago, when Leahy declared that "[i]f there is one area where partisan politics should not be allowed, it is in the area of the Federal judiciary."

Back in June, 1998, when there were just 72 vacancies, Leahy said: "I hope the [Judiciary] Committee will not delay in scheduling the additional hearings we need to hold to consider the fine men and women whom the President has nominated to fill these important [judicial] positions."

Last October, when then-candidate George W. Bush said that the Senate should vote on judicial nominees within 60 days of their nomination, Leahy was one of the first to support him. "I have said on the floor," he announced, "although we are different parties, I have agreed with Gov. George Bush, who has said that in the Senate a nominee ought to get a vote, up or down, within 60 days."

As he sits in control of the Judiciary Committee, Senator Leahy has a useful set of guidelines for running the Committee: his own words. When it comes to judicial nominees, those words could not be any clearer.

Vacancies are now at their highest level since March, 1994, 10 of President Bush's nominees have been before the Senate for 79 days, and it's time for Senator Leahy to show us just how sincere he really was. We've heard him address the "vacancy crisis." Now let's see him do something about it.

John Nowacki is deputy director of the Free Congress Foundation's Center for Law and Democracy.

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