The GOP staged a number of events last week designed to pressure Senate Democrats to confirm President Bush's judicial nominations. In the process, it highlighted how the battle over judicial nominees has shifted from considering the records of the nominees to controlling perceptions of the confirmation process. Conservatives hope that by framing the debate in terms of "fairness" and asserting that "Tom Daschle and the Democrats are not letting the Senate work," as Senate Minority Whip Don Nickles did Sunday on Fox News, they can force Democrats to ease their opposition to some of Bush's nominees.
But coming from Republicans -- who used similar tactics against President Clinton during his two terms -- the charge lacks the righteousness needed to be anything more than a transparent P.R. tactic.
The intensity of the battle has been building steadily since Democrats took control of the Senate last May. It reached a new plane in March, when Democrats on the Senate Judiciary Committee scuttled the nomination of Charles Pickering for the 5th Circuit Court of Appeals along party lines and after a protracted battle between partisan interest groups. On Thursday, Senate Republicans aggressively pushed the line that the battle over judicial nominations was about simple fairness. Observing the one-year anniversary of Bush's first 11 judicial nominations, Sen. Trent Lott, R-Miss., suggested that giving hearings to Bush's nominees was "a matter of simple fairness, and I think the American people understand that justice delayed is justice denied." Sen. Jon Kyl, R-Ariz., echoed that sentiment in a press conference, claiming, "It's time that the Democratic majority play fair with the president, play fair with the American people, and play fair with these nominees and give them a hearing."
Fairness, however, is a matter of interpretation. Republicans complain that the Senate has confirmed a lower percentage of Bush's nominees (just over half) than it did under Clinton (60 percent) in the same time period, and note that eight of Bush's first 11 nominees have yet to receive hearings. Democrats counter that they have confirmed 52 nominees, more than the Republican-controlled Senate did under Clinton in 2000, 1999, 1997 or 1996. As Ron Brownstein points out, both sides can make substantive arguments. The relative fairness of the Democrats' treatment of Bush's nominees depends on how you decide to slice the numbers.
Republicans have also contended, repeatedly, that there are too many vacancies on the federal bench. Bush suggested Thursday that "we have a vacancy crisis in America. There are too many seats that aren't filled with judges, and, therefore, America hurts, America is not getting the justice it needs." Sen. Orrin Hatch, R-Utah, also suggested in a press conference that the 84 current federal vacancies represent "a crisis in our federal courts," and Sandy Rios, president of the conservative group Concerned Women for America said, "The Senate Democrats claim to protect justice, but their own refusal to schedule hearings for qualified nominees is a treacherous twisting of the rules of the game." Yet those charges are also matters of political expediency. When Clinton suggested there was a vacancy crisis in 1999 (when there were 67 federal vacancies, just 17 fewer than now), Hatch, then chairman of the Senate Judiciary Committee, was quick to dismiss the complaint.
Other rhetoric has been less ambiguously deceptive. One particularly popular tactic, employed on Thursday by both sides, is to try to identify the other side as extremists or ideologues. Writing in the Washington Times, Thomas L. Jipping suggested that the "far-left troops" of Ralph Neas of the People for the American Way "are fighting for a judiciary that will impose his political agenda rather than follow the law." American Conservative Union (ACU) chairman David A. Keene claimed in a press release that "America suffered through the extreme left's misrepresentations, distortions, and lies as Judge Charles W. Pickering of Mississippi ... was subjected to intentional misstatements by left-wing fringe groups and their Senate Democrat allies, simply because he is Conservative."
On the other side of the aisle, Sen. Patrick Leahy, D-Vt., framed Bush's nominees in the same way, claiming that "the President, at an earlier period, said he wanted to be [a] uniter and not a divider. But he has sent the Senate several nominees who divide Americans and who divide the Senate, and those nominations will take longer." Sen. Chuck Schumer, D-N.Y., struck the same chord: "Nominate ideologues willing to sacrifice the interests of many to serve the interests of a narrow few, and you'll have a fight on your hands. It's that simple." All of this is simply an attempt to define the terms of the debate by defining one's opponents, rather than engaging on a productive level.
But the key charge is one of obstructionism. ACU's Keene made reference to "the obstructionist tactics of Democrat Senate Majority Leader Tom Daschle and Democrat Senate Judiciary Chairman Pat Leahy" and claimed that they, "in concert with the other Democrat members of the Senate Judiciary Committee, have conspired to thwart the Senate from performing its Constitutional duty to provide 'advise [sic] and consent' to the judicial nominations of the President of the United States." Nickles wrote in an op-ed on Monday that the Democrats are indulging in "controlled foot-dragging" and "organized stonewalling."
Meanwhile, Nan Aron of the liberal Alliance for Justice reversed the charge, claiming that "after years of obstructing President Clinton's judicial nominees, some Republicans are now threatening to shut down the Senate simply for doing its job -- carefully scrutinizing all candidates for these prestigious lifetime positions."
Republicans seem intent on continuing this campaign to paint themselves as the partisan victims of a Democratic Senate intent on holding up conservative nominations. The problem they have in gaining any sympathy, however, is their inability to show that they behaved any better in the past.
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