TODAY A SUBCOMMITTEE of the Senate Judiciary Committee will hold a hearing designed to put Republicans on the defensive. “Ghosts of Nominations Past: Setting the Record Straight,” is how the hearing is billed. By “nominations past,” the Democrats, led by subcommittee chairman Charles Schumer, mean Clinton nominees who weren’t confirmed when Republicans controlled the Senate from 1995 through 2000. Some of those nominees (“ghosts”) are scheduled to appear (they do happen to be alive) before the subcommittee.
You’ll note that today’s date is May 9, 2002. The Democrats chose today to have the hearing for a reason: It’s exactly one year since Bush announced his first judicial nominees, a total of 11, all of them to circuit courts. Just 3 have been confirmed. The remaining 8 have yet to have hearings. If you’ve followed this story, you know that committee members have been debating the circuit-judge confirmation pace. (Bush has named 30 in all, and 9 have been confirmed.) Democrats are using the anniversary to argue that the Republican-controlled Senate treated a lot of Clinton’s circuit nominees badly, most by never holding hearings. Though Democrats deny that now that they control the Senate they are behaving in a tit-for-tat manner, the hearing sure looks like an effort to establish the tat.
In light of what both sides have been saying in advance of the hearing, you can expect that it will be heavy on numbers. The Democrats will say that the Republicans from 1995 through 2000 blocked confirmation of 35 percent of Clinton’s circuit nominees. Republicans probably will dispute that percentage. There is no disagreement between the two sides over the numerator, the number confirmed, which is 46. But there is a disagreement over the denominator, the number nominated. Because some were nominated twice (in successive Congresses), they should, as the Republicans correctly argue, be counted only once. In any event, Democrats will complain that whatever percentage you use, it shows that the Republicans were blocking a lot of Clinton circuit nominees. Democrats suspect that Republicans did so in order to leave the seats open for a Republican president to fill.
Republicans will counter that most of those not acted upon lacked home-state senatorial support or else were discovered during the committee’s internal review to have a problem of some sort (not the kind to make public) that effectively ended their nominations. Republicans will be reluctant to identify those nominees, or to concede even (as appears to be the case) that some (non-problematic) nominees weren’t treated fairly–that they should have been given hearings. If the Democrats bring up the matter, Republicans will deny trying to reserve the vacancies for a GOP president to fill. They will say they reviewed each nomination on its own terms.
In all, the Republicans will argue that the committee, whose chairman was Orrin Hatch, handled its duties just fine. And they will go on to point out, if you want to compare now to then, that the Democrats are doing terribly, as they have confirmed only 30 percent of Bush’s circuit nominees (9 of 30), although, of course, that number doubtless will go up. They will emphasize that of the 8 nominees from the first batch of 11 who have yet to have hearings, only one doesn’t have the support of both home-state senators.
The Republicans also will emphasize what may be their most compelling numbers: That all three of the presidents prior to Bush saw their first 11 circuit nominees confirmed during their first year in office. Bush, of course, has had no such luck, and he’s well into his second year. Republicans suspect the Democrats have a coordinated strategy of opposition, one grounded in ideology.
Today’s hearing may turn personal. In a meeting with reporters Wednesday, Hatch took sharp issue with Democratic complaints about the Judiciary Committee’s handling of Clinton nominees when he was its chairman, and he spoke with evident emotion about what he sees as the committee’s unfair treatment of Bush nominees. Several times he came close to uttering an expletive. At one point, in fact, he said some Bush nominees were “being treated like–” only to catch himself and say, “Leave that blank.” Today he probably will be tempted more than once to fill in the blank.
Terry Eastland is publisher of The Weekly Standard.
