Yesterday, Senator Orrin Hatch (R-Ut.) wrote an opinion piece for The National Review in which he criticized Senate Democrats for not moving fast enough on President Bush’s judicial nominees. The senator took a rather limited view of the advice and consent role that the Senate plays in the judicial confirmation process, claiming that it “provides advice about whether the president should appoint his judicial nominees by giving or withholding consent through up or down votes. That is what the Constitution assigns us to do…That is what the Senate is failing to do.”
No offense to Sen. Hatch, but we feel his interpretation of the Senate’s constitutional authority is a bit oversimplified. Nowhere in the Constitution did the Framers provide the caveat, "and by advice and consent we mean up-or-down vote.” The Senate has a crucial role in the confirmation process – to carefully consider each nominee for these life-time appointments in order to ensure the independence of our judiciary.
Sen. Hatch trots out several misleading figures to support his argument that Democrats are unfairly blocking the president’s nominees. One of the first points he makes – in a blatant attempt to seize the high ground – is that he has only “voted against…five…nominees to life-tenured judicial positions that the full Senate has considered.” While this figure sounds impressive, it is also conveniently deceptive. What Sen. Hatch forgets to mention is that, as a member of the Senate Judiciary Committee for over 30 years, he has enjoyed the luxury of being able to oppose nominees well before they reach the Senate floor for a vote.
The Senator criticizes his Democratic colleagues by comparing the total number of President Clinton’s nominees who were confirmed to the current number of Bush’s appointments. He claims that “at both stages in the confirmation process, the Judiciary Committee and the Senate floor, Democrats are failing to meet both historical and their own standards.” While it is true that Bush has not appointed quite as many judges as Clinton – mostly due to a significantly lower vacancy rate on the federal bench – most court watchers agree that his efforts to spearhead a conservative takeover of the judiciary have proved much more successful than these numbers would suggest. For proof, see USA Today’s article from just two weeks ago titled, “Bush’s Conservatism to Live Long in the US Courts.”
One of the most galling aspects of the senator’s article is his attempt to separate himself from the political maneuvering that he so strongly condemns. He proclaims that he has never taken a “partisan approach to judicial confirmations.” But a look at the record tells a different story.
Sen. Hatch has proven a staunch and useful ally for Bush in his campaign to pack the courts with ultra-conservative ideologues. As Chairman of the Senate Judiciary Committee, Sen. Hatch broke long-standing procedural agreements by holding hearings on several controversial nominees at the same time and reinterpreted a decades-old rule, which he himself had used to hold up previous Clinton nominees, in order to force votes on Bush’s conservative picks. Let us also remember that, as Chairman of that same committee, Sen. Hatch used his power to unilaterally block dozens of Clinton's nominees from even having hearings, much less a vote.
President Bush has used his two terms in office to advance movement conservatives’ 30-year crusade to take over the federal judiciary. To date, he has succeeded in appointing two ultra-conservative justices to the Supreme Court and tipping the balance of several circuit courts of appeals. And his presidency is not over yet. Bush still has 11 pending circuit court nominees, which if confirmed would put his total number of appointments above that of President Clinton. Sen. Hatch claims that Senate Democrats are unjustly delaying confirmation of these judges by playing partisan politics, but in reality it is the president and his allies in the Senate who refuse to compromise. Senate Judiciary Chair Patrick Leahy (D-Vt.) and his colleagues should hold strong, resist rhetoric like Sen. Hatch’s , and continue to stand up for our courts by refusing to rubberstamp President Bush’s pending nominees.