Tyranny of the minority

AFTER SEN. JOHN CORNYN (R-Texas) moved to Washington last December and unpacked his suitcases, he learned freshman lawmakers aren't the only ones carrying baggage. The Senate was changing hands, from Democratic to Republican control. And though Mr. Cornyn, a former Texas attorney general and Supreme Court justice, was no stranger to conflict, the entrenched bitterness that marked 18 months of Senate gridlock over President Bush's judicial nominations surprised even him.

"I had no illusions that the Senate was a bipartisan wonderland," Sen. Cornyn told WORLD, "but I was truly amazed at just how fractured the judicial confirmation process was."

That may be because this confirmation breakdown has disintegrated well beyond standard partisan payback. Yes, Democrats' consent to 124 of Mr. Bush's nominees has been excruciatingly slow; and yes, that may be retaliatory torpor for GOP foot-dragging on Clinton nominees.

But now more than 750 days have passed for some of Mr. Bush's first "class" of 11 federal-court appointments. Compare that with the previous three presidents' first 11 appeals-court nominees, who were confirmed in an average of 81 days, with none taking more than 202 days, according to Concerned Women for America (CWA) legal analyst Tom Jipping. Further, the Senate has confirmed just 53 percent of appeals-court nominees during Mr. Bush's first two years in office, compared to over 90 percent during the same period for Presidents Clinton, Bush I, and Reagan. And in March, Democrats deployed a parliamentary weapon never before used by a partisan minority to kill a president's judicial appointments: They launched filibusters to block full-Senate votes on two Bush nominees.

Now it appears Democrats will try to make those filibusters permanent-and add two or three more. In the process, critics charge, they are subverting the Constitution, forcing piecemeal justice in understaffed courts, and exerting politically driven, minority control over the composition of the federal bench.

The Constitution gives the Senate "advise and consent" power over presidential appointments to federal judgeships: A simple majority of senators must "consent" to-or vote to confirm-a nominee in order for that judge to take office. But since March, Senate Democrats have voted eight times to block the full Senate from voting on appeals-court nominees Priscilla Owen, a Texas Supreme Court justice, and Miguel Estrada, a Washington, D.C., attorney in private practice. This, though a majority of the full Senate has indicated that it would vote to confirm both nominees.

"For the first time in American history, a minority of Senators is using the filibuster ... to replace majority rule with minority rule," Mr. Jipping explained in a report last month: "That is, a minority seeks to defeat judicial nominations the majority would otherwise approve."

In a Rose Garden speech on May 9, 2003, the two-year anniversary of the Owen/Estrada nominations, Mr. Bush called the Senate delays "a disgrace."

"Highly qualified judicial nominees are waiting years to get an up-or-down vote from the United States Senate... while partisans search in vain for reasons to reject them," Mr. Bush said. "The obstructionist tactics of a small group of senators are setting a pattern that threatens judicial independence."

Heritage Foundation senior legal fellow Todd F. Gaziano believes the issue boils down to a fundamental clash of judicial philosophies: While most conservatives believe the law should operate independently of politics, many liberals believe that law is simply politics by other means. "Liberal activists believe the courts should engage in legislation from the bench," Mr. Gaziano said. "Some even say that's all judges really can do, and that anyone who says the Founding Fathers believed otherwise is either naïve or stupid."

For legislators who believe in judicial activism, a sympathetic federal appeals-court judge is a special prize, since they often get the last word on laws affecting such cultural hot-buttons as abortion, affirmative action, and free speech. Justice Owen and Mr. Estrada both are pro-life conservatives. Liberal Democrats may see case law like Roe vs. Wade hanging in the balance, and would rather keep appeals-court judgeships empty than fill them with jurists whose cultural and political views don't match their own.

It isn't that Senate Democrats have only just concluded this. Liberals like Charles Schumer (D-N.Y.) have long supported the idea that ideology should influence, even drive, judicial confirmations. They just didn't say it out loud. But with all three branches of government under GOP control, and a Bush 2004 reelection victory seeming to be on the horizon, "activist Democrats are apoplectic," Mr. Gaziano said. "Their world is crumbling." No better time to be brazen than now.

When Democrats controlled the Senate, log-jamming conservative judges was easier: The Senate Judiciary Committee, headed by Vermont liberal Patrick Leahy, delayed nominations, or simply refused to send them to the full Senate for a vote. Then, in November 2002, voters swept Democrats into the minority and Orrin Hatch (R-Utah) assumed the Judiciary Committee chairmanship. That forced Mr. Leahy's party to use the filibuster as its ideological last stand.

Another theory on Senate Democrats' strategy is that they're thinking long-term: Appeals-court judgeships are generally considered stepping-stones to the U.S. Supreme Court. Since pundits believe that President Bush will nominate female and minority candidates to the one or two high-court seats likely to open up during his presidency, Democrats may be trying keep such candidates off the federal appeals bench. That would explain why they recently confirmed conservative Judge Jeffrey Sutton (who is white and male), while continuing to strangle the nominations of Mr. Estrada and Ms. Owen.

A third "theory" is more of a political reality: The judicial confirmation process, because it is increasingly politicized, is heavily influenced by special-interest money. NARAL: Pro-Choice America (formerly known as the National Abortion Rights Action League) contributed more than $492,000 to candidates during the 2002 election cycle, 91 percent to Democrats.

The group's president, Kate Michelman, recently made it clear what she wants in return: "I fully expect pro-choice senators to filibuster any nominee who does not affirm a woman's constitutional right to choose." (Justice Owen, who believes a minor girl's parents ought to know when she's having an abortion, did not meet this standard. She is "emblematic of the extreme nominees that this president has attempted to foist on the American people," Ms. Michelman said.)

When the American Bar Association evaluated her fitness for the federal bench, it awarded Justice Owen its highest mark, a unanimous rating of "well-qualified." Three Democrats who served with her on the Texas Supreme Court endorsed her nomination, as did 15 past presidents of the Texas bar. Mr. Estrada, nominated for D.C. Circuit Court of Appeals, served in the Justice Department under presidents from both political parties, has argued 15 cases before the U.S. Supreme Court, and also earned a unanimous "well-qualified" rating from the American Bar Association.

Still, a relatively small minority of the U.S. Senate-in one vote as few as 39-has effectively disqualified both candidates from the federal bench, by blocking the full Senate from voting on their nominations. According to Senate rules, 60 votes are required to "invoke cloture," or end a filibuster, and force a vote. Since March 2003, Senate Majority Leader Bill Frist (R-Tenn.) has filed a record six motions to invoke cloture on Mr. Estrada's nomination, and two to invoke cloture on Justice Owen's nomination. Each time, between 52 and 55 senators, a simple majority, voted to end the debate. Yet, the filibuster continues.

As Sen. Zell Miller (D-Ga.) explained in a Wall Street Journal op-ed, "the Senate is the only place I know where 59 votes out of 100 cannot pass anything because 41 votes out of 100 can defeat it.... Try explaining that at your local Rotary Club or to a constituent in the Wal-Mart parking lot.... You can't because it stands democracy on its head."

Sen. Miller is one of only three Senate Democrats to break ranks and vote to end Estrada/Owen filibusters. The others are Bill Nelson (D-Fla.) and John Breaux (D-La.). Sen. Miller is co-sponsoring-with Texas' Sen. Cornyn, Sen. Frist, and others-legislation that would change the Senate's rules on cloture, reducing the number of required votes from 60 to 51, through a step-down process. Just one problem though: It takes 67 votes to change the rules.

Sen. Frist told WORLD the filibusters "have already had, and will continue to have, a terrible effect on the separation of powers. They challenge the deference we historically give the president on judicial nominations and they rewrite the Constitution to deny each senator their constitutional right of advice and consent."

They also harm the judiciary. After Mr. Bush chastised Senate Democrats from the Rose Garden on May 9, Sen. Leahy, the Judiciary Committee's ranking Democrat, fired back. "The Republican myth of a 'judicial crisis' is punctured by the facts, which show the lowest judicial vacancy rate in 13 years."

True, the combined vacancy rate among district and circuit courts is only about 5.5 percent. But regional appeals courts suffer a 12 percent vacancy rate, with some courts lacking as many as one in four of their judges. For example, four of 16 seats are open on the 6th Circuit, while the D.C. Circuit has three vacancies on a 12-judge court. The Judicial Conference of the United States has classified as "judicial emergencies" 15 of 18 open seats that could be filled by nominees waiting for Senate confirmation.

That classification enables courts to operate under emergency rules that try to bridge gaps in staffing. In some circuits, according to Mr. Gaziano, the vacancy crisis "has already passed the point at which oral arguments are canceled and judges must spend less time on those that are held."

These problems prompted Sen. Cornyn to piece together a "fresh start" coalition of the Senate's 10 freshmen-nine Republicans, plus Mark Pryor of Arkansas, the only freshman Democrat. The goal: Grab the attention of the upper chamber's Old Guard, put a lid on simmering feuds, and, maybe, jumpstart the confirmation process.

On April 30, the coalition sent a letter to the Senate leadership. "None of us were parties to any of the reported past offenses, whether real or perceived," the freshmen wrote in part. "None of us believe that the ill will of the past should dictate the terms and direction of the future. Each of us firmly believes the United States Senate needs a fresh start."

The appeal was not enough even to crack the Owen/Estrada filibusters. Within a week of receiving the letter, Senate Democrats voted four more times to block floor votes on the nominations. Sen. Pryor, the lone freshman Democrat, voted with his party all four times.

With appeals to conscience failing, the GOP is considering less genial options to bust the filibusters, but Sen. Frist is reluctant to use them. "Some of these [options] have been referred to as 'nuclear,' but as I see it, the filibusters themselves were a nuclear option," he said. One strategy involves a politically divisive procedure to change the Senate's standing rules, a tactic reportedly tried only twice in Senate history, the last time in 1975 by then-Vice President John D. Rockefeller. Mr. Frist said he prefers instead to seek cloture reform, which he sees as "a nonpartisan solution."

President Bush also has options to bust the confirmation gridlock. He could, Mr. Gaziano explained, announce his intention to call the Senate back into special session if they do not act on a sufficient number of his nominees by the next recess. He could also fill the longest-standing judicial vacancies with recess appointments in a way that would allow the Senate to displace a recess appointee any time it acts to confirm a regular one.

Meanwhile, Senate Democrats have hinted they might filibuster other Bush picks, including U.S. District Court judge Charles Pickering and Los Angeles Superior Court judge Carolyn Kuhl, both appeals-court nominees. The danger, Mr. Gaziano said, is that soon "only those who behave as political ideologues will be appointed. These are the seeds the Senate [minority] is sowing now."