WHEN SENATOR PATRICK Leahy gaveled the Judiciary Committee to order on Monday, December 10, he began by marshalling several excuses for his inaction on President Bush’s judicial nominees. Actually, to be precise, he first denied that Senate Democrats were holding up Bush’s nominations. Then he ticked off reasons for the unprecedented delays. The September 11 attacks, Leahy growled, slowed up everything. The deadly anthrax letter mailed to his office didn’t help either. In short, he argued, the problem was time. Senate Majority Leader Tom Daschle voiced the same concern when he notified the Bush administration that its longest-delayed executive branch appointee would not get a floor vote. A vote could lead to a “lengthy debate” over the nominee’s qualifications, and the Senate apparently can’t spare the time. At first blush, Democrats’ excuses for delays on the president’s judicial and executive branch nominees might seem reasonable. We are at war, after all. But Senate Democrats have found time to honor Barry Bonds for “his spectacular record-breaking season in 2001 and outstanding career in Major League Baseball.” The Democratic agenda-setters managed to squeeze in the Railroad Retirement Act, a pork-laden “stimulus package,” and subsidies to bison farmers. Senator Leahy himself worked hard to win $1.5 million for the revitalization of Winooski, Vermont, a town of 6,600. Democrats achieved all of this before they got around to allowing the president a full cabinet. That breakthrough came on December 5–more than 10 months after Bush’s inauguration–when John Walters was finally confirmed as drug czar. The administration has thus far been patient about its nominees, consumed as it has been by the war on terrorism. But with numerous executive branch appointees lost in a Senate black hole, and with the federal judiciary losing judges faster than it is replacing them, all of that could change. “There are plenty of indications that most likely the administration is going to ramp this stuff up after the holidays,” says a senior GOP leadership aide. When they do, they may get some help from Georgia Democrat Zell Miller, who says he’s fed up with the games his party is playing. “Not even having the decency to give his appointees a straight up-or-down vote is a shabby and scandalous way to treat a president of the United States,” says Sen. Miller. “And I’ll just tell you that it gives me pause, not to mention some shame, that I find myself a part of the caucus responsible for such conduct.” How much pause? No one is sure. Before the attacks, it was rumored that Miller might switch parties, giving control of the Senate back to Republicans. But it’s a topic few have raised publicly of late. Still, if nothing else, Miller’s comments offer a reminder to Democrats like Daschle, Leahy, and Christopher Dodd that their party remains in the majority by just one vote. When White House spokesman Ari Fleischer scolded Senate Democrats for blocking presidential nominees at his briefing on Friday, he mentioned only two names: Eugene Scalia and Otto Reich. Scalia is Bush’s pick to be the top legal adviser at the Department of Labor; Reich was tapped to head the Western Hemispheric affairs shop at the State Department. Theirs will be two of the hottest confirmation battles in the days to come. Fred McClure, a top congressional liaison for the first Bush White House, says both parties make use of such high-profile battles. “They help their money-raising operations. These are the PR battles meant to fire up the troops,” says McClure, who helped guide Clarence Thomas through his contentious hearings ten years ago and was called upon again to shepherd John Ashcroft’s nomination earlier this year. Both Scalia and Reich have more than enough votes to be confirmed, and the Democrats won’t permit votes on them for precisely that reason. The Bush administration is seriously weighing options–including recess appointments–to allow the two to do their jobs. BACK IN 1995, when Republicans slowed the nomination of Dr. Henry Foster to assume the basically meaningless post of surgeon general, no one was more aggrieved than Connecticut Democrat Christopher Dodd. “The idea that you would even block consideration of this person from having a vote on the floor of the Senate is childish and wrong and certainly brings disgrace on this institution,” Dodd fulminated. Foster’s nomination languished after he was found to have been less than candid about his past. But Foster at least got a hearing, something that Dodd today stubbornly denies Otto Reich. In one of the quirkier rules of the Senate, individual senators can place a perma-hold on nominations they find objectionable. Dodd last month told his local paper, the Hartford Courant, “That nomination’s not going anywhere, that’s the end of it.” Reich is unquestionably qualified for the job. A Cuban refugee who came to this country as a child, he worked in the State Department’s office of public diplomacy in the first Reagan term, and served as ambassador to Venezuela in the second. He has been consistently and strongly anti-Castro. Secretary of State Colin Powell has repeatedly implored the Senate to confirm him. “Otto Reich is an honorable man, and he will do a terrific job,” he said last month. Others in the administration and in Congress say that Dodd is singlehandedly thwarting their efforts in one of the next possible battlegrounds in the war on terrorism–Latin America. Zell Miller, who had previously indicated his support of Reich, urged Senate action in an October 18 Washington Times op-ed. “It is imperative that we install a strong diplomat for the top Western Hemisphere post at the State Department. . . . It is deplorable that we have stalled in filling this critical job when our commander in chief and our secretary of state have been urging us to do so.” Fleischer, the White House press secretary, chimed in at his briefing last Friday. Reich’s position is “critical to our relationships with our partners in the Western Hemisphere at a time when nations in Central and Latin America are looking for leadership from the United States to help them with difficult internal issues, and this is especially true as we assemble a worldwide coalition to fight the war against terrorism.” Reich’s qualifications alone make it something of a travesty that Dodd is blocking his nomination. But Dodd is doing more than simply keeping Reich from his job. He and his staff have waged a vicious, public smear campaign against Reich. In October, Dodd wrote a long letter to the Wall Street Journal making his case against Reich, at one point suggesting Reich has a history of coddling terrorists. Given the events of the past three months, this would be an extraordinarily harsh claim if made in a congressional hearing. (A Bush official working on the Reich nomination says “the entire letter did not have one true charge in it.”) But at least at a hearing, Reich could answer the accusation. As Dodd surely knows, Reich is muzzled by the longstanding tradition that nominees remain silent until their confirmation hearing, and then again until they are confirmed. Reich is itching to defend himself, but the White House has told him to sit tight. For now, others are fighting for him. “It’s a macho thing, that’s it,” says Arizona senator Jon Kyl, who is leading the charge in the Senate for the president’s nominees. “Chris Dodd wants to refight the battles about Central America in the 1980s. That’s all this is.” In addition to Zell Miller, several other Democratic senators have indicated publicly that they will vote for Reich. They include Floridians Bill Nelson and Bob Graham, and New Jersey’s Bob Torricelli, all of whom hail from states with influential Cuban-American populations. Still others have given Reich private assurances of their support. Daschle, after Dodd’s intemperate letter to the Wall Street Journal, invited Reich to meet with him. Daschle made no firm commitment to help Reich. But sources say that the majority leader, having previously pledged to give qualified nominees a fair hearing, was upset with Dodd. IF DASCHLE is at least sympathetic to Reich, he has shown no such inclination toward Eugene Scalia, Bush’s nominee to be solicitor at the Department of Labor. Scalia is the son of Supreme Court justice Antonin Scalia, and he has been in confirmation purgatory for 33 weeks. Those two facts are directly related. Scalia’s nomination was passed out of Senator Ted Kennedy’s Health, Education, Labor and Pensions Committee in early October. Kennedy voted against him, but nonetheless praised him as an “outstanding lawyer.” Cass Sunstein, a law professor at the University of Chicago known for his liberal views, says of Scalia: “In terms of sheer capacity to do a fine job, he’s as good a choice as can be imagined.” But shortly after Scalia’s committee hearing, even in the bipartisan glow of post-attack Washington, Capitol Hill was abuzz with rumors that he would be roughed up before he was given a floor vote. On December 4, Daschle announced that Scalia wouldn’t even be that lucky–there would be no floor vote at all. Daschle’s public statements about the Scalia nomination have an interesting, circular quality. “You know, I have to be convinced that the votes are there, and I don’t think the votes are there for Mr. Scalia today,” he said. Democrats weren’t supportive of Scalia, Daschle declared, “especially given his position on ergonomics.” When Bob Novak challenged Daschle on Scalia and ergonomics a week later on CNN, the majority leader elaborated. “He has said that not only would he oppose ergonomics, but he would–the impression he has left many of us is that he would even oppose the implementation, the administration of the rules that already exist.” He finished, though, right where he had started, telling Novak he “didn’t think the votes were there for Mr. Scalia.” But the votes are there, of course, and that’s why Daschle refuses to permit a floor vote: Scalia would be confirmed. “If the votes are not there, let’s have a vote, up or down–not on a filibuster, up or down–and if he doesn’t have the votes, we’ll be satisfied,” says Senate Minority Leader Trent Lott. “If they’re willing to vote against this well-qualified, very intelligent young man to be the solicitor general of the Department of Labor, then fine. Let’s have the vote.” Daschle’s comments on ergonomics are almost as disingenuous. Scalia opposed Clinton-administration ergonomics regulations that were not only rejected by a majority in Congress, they were widely mocked as a quintessential bureaucratic overreach. And what about Daschle’s third point, that Scalia has “left the impression” that he won’t enforce Labor laws? A senior administration official dismisses that claim as “a lie,” and recommends that Daschle reread Scalia’s testimony. Scalia, in his opening statement at his October 2 confirmation hearing, left himself no wiggle room on enforcement. He said the first responsibility of the solicitor is “to enforce the nearly 200 laws administered by the department.” Moments later, he was more emphatic. “If confirmed, I pledge to enforce those laws vigorously,” he testified. By late last week, Daschle opened the door just a crack, saying he’d consider a Scalia vote. “I think it’s always been clear that there are some nominations that are very, very controversial and would probably require 60 votes,” he said Friday, referring to the number of votes required to make a nominee filibuster-proof. “And whether Mr. Scalia has 60 votes is unclear.” That shouldn’t matter, says Stuart Roy, a spokesman for the Department of Labor. “We wholly reject the notion that Sen. Daschle can determine which nominees require 51 votes and which nominees require 60 votes.” So what are the real reasons for the obstruction? “A fight on Scalia gets labor issues involved,” says one nominations veteran. “He brings back Bush v. Gore in the news. And if Bush wants to think about making [Antonin] Scalia chief justice”–assuming Chief Justice William Rehnquist retires, as expected–“this is a good warning shot.” Senator Judd Gregg, a New Hampshire Republican, sees the matter as open and shut: “The only thing that is holding Scalia from being confirmed is the fact that he is the son of his father, Judge Scalia.” BUSH ADVISERS are seriously considering recess appointments of Reich, Scalia, and others. They are careful to point out, however, that this would be a last resort. But Daschle has recently hinted at his willingness to forgo a Senate recess for the holidays in order to block the president from making those temporary appointments. Republicans think they can get around any such procedural maneuver with tricks of their own. And, warns one administration official, “there are other options that we don’t want to talk about just yet.” The confirmation battles for Reich and Scalia are important not only because they concern two highly qualified individuals who would serve the president well, but because they will indicate how strongly George W. Bush will fight for his embattled nominees. With groups like the National Organization for Women and others announcing campaigns to scuttle many of Bush’s current judicial nominees, it is clear that these clashes are a preview of more intense fights to come–especially for the Supreme Court. All of this becomes moot, of course, if the Democrats’ stalling gives Zell Miller so much “pause” that he leaves their caucus and hands control of the Senate back to Republicans. The greatest hope of Senate Republicans, administration officials, and the nominees themselves is that January turns out to be Miller time. Stephen F. Hayes is a staff writer at The Weekly Standard.
