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Thursday, Aug. 23, 2001

When it comes to nominations, it's always interesting when control of the Senate switches hands. For one thing, each side immediately adopts the rhetoric previously used by their opposition.

For example, in the current Senate, Charles Schumer (D-NY) has held hearings on whether ideology should be an important concern when considering judicial nominees (as he clearly believes that it should be). In taking this stance, he essentially hewed the same line as that advocated by Jeff Sessions (R-AL), for the last four years of the Clinton administration.

Jesse Helms (R-NC) blocked a number of Clinton nominations to the Fourth Circuit on the grounds that the court didn't need any more judges. Now that an ideological compadre gets to choose who those new judges will be, however, his blanket opposition to new judges seems to have evaporated — especially in light of the fact that longtime Helms ally Terrence Boyle has been nominated to one of North Carolina's seats on that court.

As the Judiciary committee holds more hearings on nominations this week, it will be interesting to see how much the Democrats continue to model their behavior after the way that the Republicans acted under Clinton. Most importantly, how quickly will Chairman Pat Leahy (D-VT) and the other Democrats arrange votes on Bush's nominees?

These same Democrats rightly excoriated then-Chairman Orrin Hatch (R-UT) for the tremendous delays Clinton's nominees experienced. Will they now behave the same way? Let us hope not — for this practice of delay is not just bad policy, it is also unconstitutional.

The Senate's Constitutional Duty To Act Timely On Nominees

The Constitution should be read to impose on the Senate a constitutional duty to vote on Presidential nominations. Such an interpretation would, among other things, have the advantage of allowing the public to judge the various governmental players' responsibilities for the success or failure of individual nominees. If such a duty exists, then the public can squarely fault the Senate if it fails timely to act on nominees.

The Republicans shirked this duty in considering Clinton's nominees; the Democrats should now take the constitutional high ground and move quickly on Bush's nominations. Copying the Republicans' delaying tactics will simply mean that the Democrats are responding to reprehensible behavior with similarly irresponsible actions.

Delaying the consideration of Presidential nominees is more than the usual political bickering between the executive and legislative branches, because the Senate has a constitutional duty to provide "advice and consent" to the President on his nominations. That duty carries with it a duty to act timely in providing advice and providing (or withholding) consent.

Most of the academic debate on judicial nominations has concerned a separate topic: how much the Senate should consider nominees' ideological positions when they fulfill the "advice and consent" duty. Not surprisingly, many lofty academics have disagreed on this subject: during the Reagan-Bush era's 12 years of Republican appointments to the federal bench, Laurence Tribe (of Harvard Law) called for the Senate to make a thorough excavation of nominees' stances, while Stephen Carter (of Yale Law) advocated a more forgiving standard. Not surprisingly, these stances vary somewhat depending on who is doing the nominating, and it's hard to imagine that Tribe approved of the same exacting standard when it was applied to Clinton's nominees.

But what of the Senate's duty to act at all? As soon as the current President Bush began making nominations, Republican Senators started calling for their Democratic colleagues to ensure speedy confirmation hearings and votes. In support of their position, they invoked, among other arguments, the claim that the Republicans had treated Clinton's nominees fairly, and that therefore Bush's nominees deserved the same treatment.

Unfortunately, only half of that statement is true. While Bush's nominees do indeed deserve quick hearings and votes, the Republicans treated Clinton's nominees shamefully — in fact, the treatment was so bad that even Chief Justice Rehnquist took the Senate to task for its inactivity.

How Confirmations Delays Worsened During the Clinton Presidency

In claiming Clinton nominees were treated fairly, Republicans often point to the statistic that Clinton's percentage of nominees confirmed was better than the elder Bush's. While this may be true, it leaves out the fact that during Bush's term, a new Judiciary Act created many new judgeships, meaning that he had an unusually high number of seats to fill.

It is also true that at the end of the George H.W. Bush presidency, then-Judiciary Committee Chairman Joe Biden (D-DE) hung some Republican nominees out to dry (most notably D.C. Circuit nominee John Roberts, who has been re-nominated by the younger President Bush). Still, by and large the Democrats under former President Bush were much faster than the Republicans under Clinton in acting on nominations.

For example, during the elder Bush's term, only three nominees waited longer than eleven months for a confirmation vote. In contrast, of the Clinton nominees confirmed in 1998, eleven had waited over one year. William Fletcher, of the Ninth Circuit, waited over three years before finally being confirmed. Similarly, Richard Paez, also of the Ninth Circuit, waited over four years before being confirmed in 2000.

Moreover, these two judges were simply especially bad examples of a greater problem. The Clinton nominees confirmed in 1998 waited an average of 232 days between nomination and confirmation — an almost 250% increase over the previous nine years. As a result, during his 1997 report to the Senate, Chief Justice Rehnquist chided the Senate for its delay tactics, saying that the "Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or down." The Chief Justice's message was surely that the Senate is under some obligation to take reasonably prompt action on the President's nominees, and that by withholding consideration the Senate is shirking its constitutional duties.

The Framers' View of the Confirmation Process Should Hold Sway

The Federalist Papers don't say a great deal about the ideological standards to which nominees should be held, but they are quite clear about the way that the process is supposed to work: the President nominates, and the Senate considers the nominations before voting on them. Then the public can view the end result, and judge each branch's behavior before casting their ballots in the next election.

Nowhere did the Federalists indicate that they could conceive of a system where the Senate could thwart the President — and thwart accountability via ballot box, too — simply by refusing to act. On the contrary, Alexander Hamilton anticipated in Federalist 77 that "the circumstances attending an appointment ... would naturally become matters of public notoriety; and the public would be at no loss to determine what part had been performed by the different actors."

Delay in the process, however, precludes the resolution necessary for the public to determine who is responsible for a nominee's appointment or rejection. Indeed, it is fear of the democratic repercussions of voting against a nominee that generally lies behind the Senate's delay. Particularly when this motivation — the hope that accountability can be avoided —drives delay, the Senate is actively thwarting the principles the Framers intended should underlie the Senate's role in the confirmation process.

It will be intriguing to watch how the Democrat-controlled Senate Judiciary Committee handles its upcoming responsibilities. No one expects that the committee will roll over and simply rubber stamp Bush's nominees — nor, of course, should it. Some inquiry into all nominations is appropriate. But should the Democrats attempt to defeat Bush by delaying his nominations, they will be engaging in the same kind of unconstitutional behavior of which the Republicans were guilty under Clinton.

It is now the Democrats' responsibility to insure that the "argument-switching" that always attends changes of power in the White House and Senate doesn't extend to the constitutionally-protected nomination process, but rather is confined to policy issues where it belongs. The Democrats should live up to their Constitutional duty, and ensure that Bush's nominees promptly receive the votes — positive or negative — that the democratic process requires.

Sam Williamson is a law clerk for Judge Gilbert S. Merritt of the US Court of Appeals for the 6th Circuit. Prior to attending Harvard Law School, he served as an infantry officer in the U.S. Marine Corps. The views expressed in this column are his own, and do not reflect those of either Judge Merritt or the federal judiciary.

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