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Republicans Threaten to Shut Down the Senate, Charging that Democratic Consideration of Judicial Nominees Is Too Slow:
Are These Charges Accurate?


Wednesday, Jun. 20, 2007

On June 7, Senate Minority Whip Trent Lott (R-Miss.) threatened to halt all Senate activity if the Democrats persist in delaying consideration of President George W. Bush's judicial nominees. Senator Lott characterized Senate Minority Leader Mitch McConnell (R-Ky.) as "very mad" about confirmation's slow pace, and warned that there "could be total shutdown here pretty soon," if Democrats fail to expedite judicial appointments. Senator John Cornyn (R-Tex.), a Judiciary Committee member, found it "clear that Democrats intend to slow walk judicial nominations and throw up as many roadblocks as they possibly can."

However, before the Republican leadership acts precipitously on Lott's threat to "cause major meltdown" if Democrats do not accelerate the confirmation process, the GOP might want to examine the record, which is considerably less clear than the Minority Whip suggests.

The Case of Fifth Circuit Nominee Leslie Southwick

The two-decade judicial selection wars have been punctuated by vicious accusations and recriminations, divisive partisan conduct for strategic benefit and incessant paybacks. The most recent controversy involves a Mississippi vacancy on the U.S. Court of Appeals for the Fifth Circuit.

Leslie Southwick is the third candidate whom Senator Lott has recommended that President Bush nominate for this opening. Southwick, who served as a Mississippi Court of Appeals Judge for a dozen years, receivedthe highest rating of"well-qualified" from the American Bar Association. However, Democrats have raised concerns about Southwick's voting patterns, which favored business interests over plaintiffs who allegedly were discriminated against or injured by defective products. They also claim the judge has been insensitive regarding issues of racial discrimination and sexual preference in some cases. These objections to the Southwick nomination recentlyled Senator Patrick Leahy (D-Vt.), the Judiciary Committee Chair, to delay voting for a second time. And it was Leahy's action that seemingly triggered Lott's fit of pique and his threat to stop Senate business.

Last Thursday, the Judiciary Committee was scheduled to consider Southwick for a third time. However, Senator Arlen Specter (R-Pa.), the panel's ranking Republican, asked that the vote be delayed again, so that he might spend "time - perhaps waste my time" persuading his Democratic colleagues to approve the nominee, because he deemed it clear that "Southwick would be rejected if a committee vote" had been called.

Specter was concomitantly amenable to reporting the nominee out of committee with no recommendation, a rarely-invoked procedure, as Republicans believe that the full Senate will approve Southwick. Leahy has reportedly asked the White House to withdraw Southwick and nominate him for a district court vacancy, as happened in the last Congress.

The Historical Record: Are Democrats Truly Worse Than Republicans Regarding the Tactic of Delaying Judicial Nominees?

Examination of the historical record, however, demonstrates that the Republican leadership may be suffering from memory loss when they charge that Democrats are playing a unique kind of dirty pool by refusing to act promptly on Republic nominees.

Throughout the Bush Administration, the president and Republican senators have repeated the mantra that every judicial nominee deserves an up or down vote. But it bears remembering that Republicans never granted many of President Bill Clinton's nominees' hearings, much less committee or floor votes. Moreover, consultation of the record reveals that Senator Leahy has processed judicial nominees at a considerably faster clip than either of the two earlier Republican Judiciary Committee Chairs.

It is also important to remember that the White House itself bears much responsibility for appointments' pace. Since January, the Senate has confirmed three Bush appeals court nominees, out of eight submitted. However, the White House has neglected to forward any nominees for eight additional appellate openings, for two more seats that will become vacant on July 1, and for the seats of two circuit judges who have said that they will assume senior status upon the appointment of their successors.

A Solution that Should Be Acceptable to Both Parties

Regardless of how the Southwick dispute is resolved and notwithstanding which political party has the better of the argument over judicial selection's pace, Republicans and Democrats can institute several actions that would improve thejudicial confirmation process.

For his part, Mr. Bush should expeditiously nominate individuals who are highly intelligent, industrious and independent, and possess balanced judicial temperament for all the current and upcoming openings. The chief executive might also facilitate appointments by consulting with Democrats before he formally nominates candidates and by selecting consensus nominees. In turn, if the president acts in good faith by tendering nominees who truly have these qualifications, Senator Leahy and the Democratic leadership should promptly schedule nominee hearings as well as committee and floor votes.

If Republicans and Democrats limit partisanship and work cooperatively, they can fill the judicial vacancies soon.

Carl Tobias is the Williams Professor at University of Richmond School of Law.

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