Democrats, Block Those Bush Appointees
Published on Sunday, May 20, 2001 in the Boston Globe
Democrats, Block Those Bush Appointees
by Robert Kuttner
REPUBLICANS NOW control the executive and legislative branches of government and are aiming for a lock on the third branch, the federal courts. All that stands in their way are 50 Democratic senators, 40 of whom can mount a filibuster. But will the Democrats be as unified and as tough as the Republicans?

We will get a preview of the Democrats' resolve when the Senate takes up the nomination of Ted Olson as solicitor general. Olson, who was less than candid with the Senate Judiciary Committee about his role in the Clinton-bashing Arkansas Project, would be the most partisan solicitor general ever.

Orrin Hatch, the Republican chairman of the Senate Judiciary Committee, now wants to make it harder for home state senators to delay court nominations with so-called blue slips. Coincidentally, it was Hatch, in 1995, who hardened the blue-slip policy to allow a single senator to block a nomination indefinitely.

Republicans used this system to block dozens of Clinton nominations, which were conveniently left for George W. Bush to fill. The GOP was particularly zealous in blocking appointments to appeals courts, which decide matters of law.

Now that the shoe is on the other foot, Republicans and their allies in the media are painting the Bush administration as the victim of Democratic partisanship.

William Safire of The New York Times wrote soothingly that Republican senators had blocked Clinton court nominees at about the same rate that Democrats blocked President Reagan's conservative choices.

Not so. To a far greater degree than the Democrats who controlled the Senate during six of the Reagan-Bush I years, the Republican Senate played relentless hardball to keep Clinton from appointing even moderate judges, especially to appeals courts.

The Republican Congress also refused to create new judgeships necessary to handle an expanding population and caseload.

Under President Carter, 152 additional federal judgeships were created. Reagan and Bush each got 85, Clinton just nine.

Under Reagan and Bush, the the Senate, then controlled by Democrats, typically approved presidential nominations to the appellate bench within three to four months.

When the roles were reversed and Republican senators were in charge, the average delay rose to more than seven months in Clinton's second term and 280 days in Clinton's last two years, according to a tabulation by the Alliance for Justice.

By the end of 2000, the Senate had confirmed only 39 of 81 pending judicial nominees and just eight to appeals courts. Forty-two were left to lapse.

By the end of the Clinton presidency, eight out of the 13 federal appeals courts were still dominated by Republican judges, and just one, the Sixth Circuit, had a narrow majority of Democratic appointees (plus four vacancies.)

While a few high-profile nominations of ultra-conservative judges by Ronald Reagan and George Bush Sr. were indeed killed by the Democratic Senate, there was far less blockage and delay.

Clinton, faced with tougher partisan opposition, consulted closely with Republicans over nominations. In an effort to appease his Republican opponents, he appointed several conservative judges recommended by conservative GOP senators.

Even so, dozens of nominations were delayed and then either quietly killed or blocked in committee.

President Bush has now sent forward his first 11 appointees, all of them to fill vacancies on courts of appeals. Three would fill seats on the Fourth Circuit, which Jesse Helms managed to keep vacant for nearly five years, blocking one black nominee after another.

The man named by Bush to fill one position, Judge Terry Boyle of North Carolina, a protege of Helms's, is one of the most conservative on the federal bench.

For instance, he was the author of two decisions on race and redistricting, both overturned by a not-very-liberal Supreme Court, holding that race can never be a factor in creating representative legislative districts.

It is a shame that the federal judiciary, ordinarily the most dignified and least politicized branch of government, has become subject to such narrow partisan and ideological scrutiny.

Yes, Democrats, with rare conviction, did block appointment of Judge Robert Bork to the US Supreme Court - but the Republicans turned ''Borking'' into a routine way of life.

President Bush, who assumed office in a tainted election with a minority of the popular vote, would be wise to appoint only moderate judges.

But since he owes his very office to the partisanship of the conservative majority on the Supreme Court, most of his appointments will apparently be right-wingers of the same stripe.

It is up to Democrats to restore balance and moderation to the judiciary - but that, paradoxically, will take some partisan nerve.

Robert Kuttner is co-editor of The American Prospect. His column appears regularly in the Globe.

© Copyright 2001 Globe Newspaper Company