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BY Joseph A. D'Agostino
WASHINGTON, D.C. — During the 2000 presidential campaign, Al Gore accused George Bush of seeking to impose a pro-life “litmus test” on judicial nominees.
As Bush's second year as president winds down, it's clear that there is a litmus test for judicial appointments — a pro-abortion one, imposed by the Democrat-controlled Senate.
And neither Bush nor Senate Republicans intend to confront the Democrats over the issue.
Senate Republicans say only the restoration of a Republican majority can prevent a repeat of the unprecedented defeat of judicial nominee Priscilla Owen by Democratic Senate Judiciary Committee members for purely ideological reasons.
Owen, a Texas Supreme Court justice nominated by Bush to the federal 5th Circuit Court of Appeals, was defeated on a 10–9 party-line vote Sept. 5. Bush called the committee's action “shameful, even by Washington standards.”
Sen. Orrin Hatch (R-Utah), ranking member of the Senate Judiciary Committee and Republicans' point man on judicial nominees, said only a Republican Senate majority can change things regarding judicial appointments.
“That is the only way,” he said Sept. 17. “Without control, we can't do it.”
Asked if Senate Republicans might employ hard-nosed tactics such as procedural delays in order to force floor votes on nominees, Hatch replied, “That's only useful if it works. The only other thing we can do is get our concerns out to the press. A lot of people are concerned about it, not just in the conservative press but in the liberal press.”
In fact, even the liberal Washington Post editorialized on Sept. 13, “The Senate Judiciary Committee's rejection last week of President Bush's nominee to the 5th Circuit Court of Appeals, Priscilla Owen, opens a distressing new chapter in the war over judicial nominations. ... [A]t the end of the day, the objections to Justice Owen were almost purely ideological and dominated specifically by the politics of abortion.”
Another Republican Judiciary Committee member, Sen. Mitch McConnell of Kentucky, agreed with Hatch that procedural pressure was unlikely to work right now.
“The problem is, the things that are out there right now are things that we favor,” he said. “Homeland Security, the Iraq resolution is coming up. That diminishes our ability to do anything like that. In the future, we may have an opportunity to do something.”
Ron Bonjean, spokesman for Senate Minority Leader Trent Lott (R-Miss.), said Sept. 18, “Senate Republicans are committed to seeing Priscilla Owen gets her day,” but could not outline a strategy for getting her nomination to the floor.
‘Frame the Debate’
Tom Jipping, senior fellow in legal studies at Concerned Women for America and longtime monitor of judicial nominations, said there are other things Republican senators should be doing to pressure Democrats such as Judiciary Committee Chairman Pat Leahy (D-Vt.) and Majority Leader Tom Daschle (D-S.D.).
Hatch's “point about procedural pressure is well-taken,” he said. “With a Republican president, what could they hold up that wouldn't hurt them? They already tried this with an appropriations bill, and Daschle went to the president and said, ‘You want this more than I do.’”
However, Jipping said, “Republican senators could be giving more floor speeches, frame the debate more properly. To ask a president who's about to invade Iraq to take up a job that Republican senators should be doing doesn't make sense.”
Of course, he said, it's easier to wage a PR battle when legal groups complain about judicial vacancies.
“They've stopped doing that since Bush became president, even though the vacancy rate is higher,” he said.
He said that Owen's defeat marked a major escalation in Democrats' war to maintain a left-wing, activist judiciary, and noted that Democrats never had to face such a situation when Bill Clinton was president and Republicans controlled the Senate.
“Republicans never defeated a Clinton nominee in committee,” Jipping said. “They voted down only one Clinton nominee. Ronnie White was defeated by the full Senate. Republicans did refuse to hold hearings and refuse to hold votes on nominees, but Clinton renominated these, sometimes more than once, and eventually almost all of them were confirmed.”
Jipping pointed out that only six times in the past 60 years has the Senate Judiciary Committee voted down a nominee. Five of those cases occurred under Democratic control. One of them, the party-line defeat of Charles Pickering, came in March of this year.
Even the nomination of Robert Bork, named by President Reagan to the U.S. Supreme Court, made it to the Senate floor, where it was voted down.
So far, the White House has not indicated that it plans to engage Senate Democrats in a fight over judicial nominees.
“We would like all our judicial nominees to receive a vote in the Senate,” White House spokeswoman Mercy Viana said Sept. 18. “We believe that if Priscilla Owen and Charles Pickering would have come to the floor, they would have been confirmed.”
Owen did not make it out of committee despite receiving a unanimous “well-qualified” rating from the left-leaning American Bar Association, and even though “no one knows her personal position on abortion,” Jipping said. “No one knows her position on Roe v. Wade.” When Sen. Dick Durbin (D-Ill.) asked her in a hearing, “Let me ask you directly, what is your position on abortion?” she refused to answer.
Owen's opponents pointed to her pro-business decisions and her dissents in three cases in which the Texas Supreme Court reversed lower-court rulings that did not grant exceptions to Texas' parental-notification abortion law. But in nine other cases, she sided with majorities that reversed similar rulings.
The Senate Judiciary Committee Democrats have been consistently obstructionist since Bush first started naming judges:
Though “45% more people have been nominated by Bush to the appeals court than by Clinton [in his first two years], his confirmation rate is less than half of Clinton's,” Jipping said.
Bush's average appeals vacancy rate is 50% higher than Clinton's.
A year and a half after their nominations, only four of Bush's first 11 appeals court nominees have been confirmed. According to Jipping, the first appeals court nominees of presidents Reagan, the first Bush and Clinton took an average of less than three months before confirmation.
Judiciary Committee Democrats plan hearings on at least two more Bush appeals court nominees, conservative law professor Michael McConnell and Miguel Estrada, before the end of the year, so the issue is likely to remain prominent during the fall campaign.
Michael Uhlmann, a Catholic who served as special assistant on legal policy in the Reagan White House, said Catholic voters shouldn't fault Bush for not fighting harder for pro-life judges. Instead, they should target the five Catholics on the judiciary committee who have joined in obstructing his nominees: Committee Chairman Leahy, Edward Kennedy, D-Mass., Joseph Biden, D-Del., Richard Durbin, D-Ill., and Maria Cantwell, D-Wash.
“Those guys for a long time have gotten a free ride on this,” Uhlmann said. “They've gotten no pressure from Catholics and no pressure from the U.S. bishops. That's a pressure point that could be brought to bear.”
Joseph A. D'Agostino writes from Washington, D.C.