The Free Congress Commentary:

Senate Dems: Prolonging Judicial Vacancy Crisis

By John Nowacki
May 4, 2001

How can a crisis situation continue to worsen while the very people who sounded the alarm fall silent? When you consider that you're dealing with Senate Democrats and judicial nominations, it's not so difficult to understand. For years, Democrats talked about a vacancy crisis in the Federal judiciary. In their drive to confirm Bill Clinton's nominees, it was a constant refrain heard in nearly every speech or floor statement.

But Clinton is no longer appointing judges, and while vacancies have gone up, Senate Democrats have done more than merely fall silent - they are talking openly of filibustering nominations... before the President has presented a single judicial nominee.

Last summer, with 21 vacancies in the Federal appellate courts, Senator Patrick Leahy said that "their ability to administer justice for the American people" is being hurt. There are 31 vacancies on those appellate courts today, and when asked last week whether Democrats will filibuster nominees, the ranking Democrat on the Judiciary Committee said: "Well, we'll just see what happens."

Until recently, Senator John Edwards was saying that it is "critically important that North Carolina gain another judge on the Fourth Circuit." While there are still no North Carolinians on the Fourth Circuit, the Raleigh News & Observer reported last week that Edwards has "ratcheted down his rhetoric" about the matter. The critical situation has been downgraded to "it depends on who it is, of course." And in a recent National Public Radio interview, Edwards indicated his willingness to filibuster nominees.

In 1998, when there were 84 vacancies on the Federal courts, Senator Richard Durbin announced that "we are facing a nationwide crisis. Our judicial system is being slowly but surely strangled." There are 100 vacancies today, but with Democrats positioning themselves to block confirmations, Durbin is suddenly a lot less vocal about that nationwide crisis. Last March, when there were 75 vacancies -- 25 fewer than today - Senate Minority Leader Tom Daschle said there was a "dire shortage" of judges, and that "we have a judicial emergency now, throughout the country."

But as the New York Times reported on Tuesday, Daschle was at a closed-door meeting of Senate Democrats over the weekend, where he cautioned his colleagues about making snap-endorsements of Bush nominees (as Senators Torricelli and Biden did when John Ashcroft was nominated), lest it cause difficulties in blocking their confirmation.

According to the Times report, the Democrats also played host to Professors Laurence Tribe of Harvard and Cass Sunstein of the University of Chicago, who told them "it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite." Not quite what one would expect when dealing with a situation well above what Daschle called a "judicial emergency."

When Democrats controlled the Senate, even under President Clinton, they kept vacancies well above the 100 mark. In fact, they only dipped below 100 in mid-1994, just before they lost the Senate. On the other hand, Republicans -- under President Clinton -- kept judicial vacancies much lower, generally between the 50 and 70 marks.

Even at the end of Clinton's term, at the beginning of last November, there were just 66 vacancies. That number has only risen to 100 because of natural attrition -- retirements, deaths, and so on -- and the addition of new judgeships last fall. Last November, with those 66 vacancies, Senator Leahy said that a truer measure of vacancies would include the new judgeships he was proposing - a vacancy figure of 135. By his own reckoning, then, there are "really" 169 vacancies today.

In July, with just 7 fewer vacancies, Leahy said the figure was detrimental to the American people and the administration of justice. Now that that number is even higher, Leahy should be doing his best to lay the groundwork for confirmations. In fact, he's already given his word to do just that. In 1998, Leahy pledged to "do what I can to help end the vacancy crisis that is plaguing the Federal courts and threatening the quality of justice for the American people." Instead, he and his colleagues are laying the groundwork to block confirmations.

Senate Democrats, then and now -- it's quite a contrast

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

This column is the property of the Free Congress Foundation and may not be reproduced without their permission.

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