National Catholic Register


Senate Democrats Seek to Screen Out Pro-Life Judges

Judicial Committee Institutionalizing the ‘Borking’ of Judges

BY Joshua Mercer

August 05-11, 2001 Issue | Posted 8/5/01 at 1:00 PM


WASHINGTON — When Vermont Sen. James Jeffords defected from the Republican Party in May, thereby handing effective control of the evenly divided Senate to the Democrats, Sen. Patrick Leahy, D-Vt., promised to slow down confirmation of President Bush's judicial picks in his new job as Judiciary Chairman.

Not only did Leahy fulfill that promise, but Senate Democrats have now initiated a new strategy to combat judicial selections made by Bush.

Welcome to the pro-abortion ideological litmus test.

“This era, perhaps more than any other before, calls for collaboration between the president and the Senate in judicial appointments,” Sen. Chuck Schumer, DN.Y., the new chairman of the Judiciary subcommittee on courts, said at a subcommitee meeting in late June. “It certainly justifies Senate opposition to judicial nominees whose views fall outside the mainstream and have been selected to further tilt the courts in an ideological direction.”

Added Schumer, “The president, of course, can choose to exercise his nomination power however he sees fit. But if the president sends countless nominees who are of a particular ideological cast, Democrats will likely exercise their constitutionally given power to deny confirmation so that such nominees do not reorient the direction of the federal judiciary.”

This focus on removing “ideology” from judicial appointments is being championed by pro-abortion senators like Schumer and Leahy. Republicans are worried that it really means that conservatives, especially those who are pro-life, will face insurmountable hurdles to win confirmation from the Democratic-controlled Senate, whereas pro-abortion nominees will be regarded as “non-ideological.”

“Using ideology as the grounds for confirming or rejecting a judicial nominee is a dangerous exercise,” Sen. Jon Kyl, R-Ariz., said in a statement to the Register. “It shatters the historic notion of deference to presidential nominations, ensures constant conflict and demands that senators conduct inappropriate judgements in determining what constitutes ideological ‘balance’ on the courts.”

Kyl noted that there are currently 108 vacancies in the federal judiciary. Forty of those slots are considered judicial “emergencies” by the administrative office of the U.S. court system. Kyl added that 42% of Bush's judicial picks have received no Senate vote yet. This rate is much higher than at a similar point in time for Presidents Clinton and Reagan (26% and 28%, respectively).

Kyl spokesman Matt Latimer noted that Democratic control of the Senate has brought confirmations to a near standstill. Since the Democrats took control in late May, Latimer said, “As of July 20, only three candidates have been confirmed.”

Began with Bork

Larry Sabato, professor of political science at the University of Virginia, warned that both parties engage in political fights over the federal judiciary.

“Since the defeat of Robert Bork to the Supreme Court in 1987, judicial nominations have been a tinderbox,” Sabato told the Register, “Both parties do what they can to slow the other party's presidential nominations.” “The reason is simple: The stakes are so high and the ideological gap between the parties is so wide.”

Sabato suggested that Bush, like Clinton, will have to supplement his judicial picks with candidates for which the opposition party approves. Even then, a rough road is ahead, he warned.

“Many judgeships will simply be left unfilled for [Bush's] entire term, or terms,” Sabato said. “Just wait until the Supreme Court vacancies. Those fireworks will make the district and appellate controversies look like mere sparklers.”

The fireworks stem primarily over abortion. Abortion supporters have made it known that they place support for legalized abortion far above any other consideration for judicial candidates. That's why they oppose many of Bush's picks: because they're pro-life.

Kate Michelman, president of the National Abortion and Reproductive Rights Action League, said, “Most of the president's nominees are staunch conservatives who will roll back many of this nation's most cherished rights, including the right to choose.”

But in fact, while Bush was accused during last year's election campaign of seeking to impose a pro-life “litmus test” for judges, most leading pro-life activists have never sought such a commitment. For instance, neither during the campaign nor during the judicial selection process has National Right to Life demanded that Bush adopt a pro-life litmus test.

“Bush has said that he is going to continue nominating those judges who are not legislating from the bench,” Douglas Johnson, legislative director for National Right to Life, told the Register. “That's of course antithetical to Roe v. Wade or Stenberg vs. Carhart.”

Joshua Mercer writes from Washington, D.C.