With an extra serving of pomp and circumstance -- and the tantalizing aroma of politics in the air -- President Bush on Wednesday afternoon formally announced 11 of the nearly 100 federal judicial nominations he is expected to make in the coming months.
A couple of the nominees are Democrats, and the group is racially diverse. But the presence of a few bedrock conservatives on the list -- and the bitter controversy over what degree of power Democratic senators will wield in the selection and confirmation of nominees -- is a larger issue than even Bush's savvy image brigade can solve with one successful Benetton ad of a photo op.
Senate Democrats remember the considerable power GOP senators wielded in blocking nominations under President Clinton -- through a senatorial prerogative that Senate Judiciary Chairman Orrin Hatch, R-Utah, has been trying to alter now that a Republican is in the White House. Angered, Democrats on the Judiciary Committee walked out of a committee hearing last Thursday, refusing to move ahead on Bush's nominations for deputy attorney general and solicitor general, and threatening no action on any of Bush's judicial nominees until the blocking prerogative was resolved to their satisfaction.
Bush, now realizing the power 50 senators can wield in an evenly divided Senate, offered the balanced, diverse slate Wednesday as evidence of his good faith and asked that "good faith will also be extended by the United States Senate." Decrying the political battles of past confirmation fights, Bush asked "senators of both parties to rise above the bitterness of the past," and for a "return of civility and dignity to the confirmation process."
Fat chance. The stakes are too high. The president's judicial selections determine the composition of the federal courts -- 822 federal judges total -- where decisions on hot-button social issues like abortion, school vouchers and affirmative action will be made for the next quarter-century. And since 1997, Democrats and liberal court watchers have been complaining that Senate Republicans were given unprecedented veto power by Hatch, allowing them to hold up confirmation of Clinton's judicial nominees not because they weren't qualified but because they didn't like their politics, which is not supposed to be a factor in the selection process (the Democrats' flogging of Judge Robert Bork notwithstanding).
Senate Republicans did use myriad bureaucratic tools to block a staggering and unprecedented 167 of Clinton's judicial nominees -- tools that Hatch is now trying to throw into the incinerator. In particular, he wants to nix an agreement that allows senators to block a nomination of a judicial candidate from their home state. Senate Democrats worried that Hatch was trying to pave the way for the Bush team to push as many hard-right conservatives onto the bench as possible, with little regard for moderation or bipartisanship.
But the Judiciary Committee must vote to move Bush's nominees to the full Senate, and no vote can take place if all of the committee's Democrats unite to block it -- which they are promising to do if they are not afforded the same home-state senatorial prerogative. Some observers say that the committee is roiled by more partisan rancor and dissent than at any time since the 1991 Clarence Thomas hearings. After Wednesday's ceremony, Sen. Pat Leahy, D-Vt., the ranking Democrat on the Judiciary Committee, was asked to describe the mood on the panel. "It's such sweetness and light that it's almost impossible to bear," Leahy joked.
"Right now we're staring at each other, and I don't think our side intends to blink," says Sen. Chuck Schumer, D-N.Y., the ranking Democrat on the Judiciary Subcommittee on Administrative Oversight and the Courts.
"I think [for the Democrats] it's 'get even' time," counters Sen. Chuck Grassley, R-Iowa, also a member of the subcommittee.
The hot controversy clearly figured into the equation when Bush and his staff selected the list of 11 nominees. Two controversial conservative candidates many expected to be picked were absent from the list. And though some conservative nominees were included, they were -- with one exception -- from states with two Republican senators. The White House fact sheet on the nominees shamelessly heralded that "a majority of the slate of nominees (6 of 11) are women or minorities." One of the nominees, Judge Roger Gregory of the 4th U.S. Circuit Court of Appeals, was first picked by President Clinton for a temporary promotion to that court. If Gregory is confirmed, he will be the first African-American to ever permanently serve on that court.
"Had I not been encouraged" by the nominees, "I would not have been here today," Leahy told reporters in the White House driveway. "Sometimes this looks like a very polarized thing, and it does not necessarily have to be. It becomes polarized only if we try to lurch the federal judiciary one way or the other."
But Gregory's selection by Bush underscores why there's so much partisan rancor on the judicial selection issue. Gregory, a Virginian, was introduced in the waning days of Clinton's presidency only after three other Clinton judicial nominees were blocked by Sen. Jesse Helms, R-N.C., as the former president tried in vain to name an African-American North Carolinian to the 4th Circuit Court. (Helms said that the court had enough judges.)
Bush's selection of Gregory was clearly an olive branch. ("This is an unprecedented act of bipartisanship," the White House fact sheet humbly proclaimed of the nomination. "The White House is aware of no instance in which a president of one political party resubmitted the nomination of a circuit court candidate originally nominated by a predecessor from the other party.") But Senate Democrats, for now pugnacious and cohesive on the issue of judicial nominations, sneered at what they saw as a blatant attempt to avoid the larger issues at play.
The key issue in the Senate's battle over judicial selection is the "blue slip" policy Hatch allowed under Clinton, which gave each home state senator of a judicial nominee the ability to sandbag his or her nomination by merely not returning the blue slip of paper on which comments about the nominee are to be written. Hatch seemed ready to revise that senatorial prerogative now that there's a Republican in the White House, but Democrats put up a big fuss.
The blue slip policy provided GOP senators with "the appropriate checks and balances on President Clinton's nominees," Leahy said Wednesday of a policy he once derided. "We will ask for no more and no less."
On Tuesday, Democrats caucused and came to a firm decision: Instead of blocking all of Bush's judicial and Department of Justice appointments, as some members had threatened to do last week, Senate Democrats are now planning to proceed under the assumption that there has been no change in Senate blue slip policy at all, meaning Democratic senators will have a strong say in vetting nominees from their states, the way Republicans did under Clinton.
"As far as I'm concerned, the blue slip policy is resolved," Leahy said.
"Judiciary Democrats are going to enforce the Hatch 'blue slip' policy that was in place during the Clinton administration," seconded Schumer. In practical terms, Schumer said, that means that Sen. John Edwards, D-N.C., can hold up Bush's Wednesday nomination of conservative North Carolina District Court Judge Terrence Boyle to the 4th U.S. Circuit Court of Appeals by not returning the blue slip -- just as his colleague Jesse Helms did with North Carolina judicial appointments under Clinton.
A source close to Edwards says that the senator is not going to return his blue slip on Boyle until the White House works with him on achieving more "balance" in its nominations. Another slot is open on the 4th U.S. Circuit Court; Edwards wants to work with the White House on filling that position.
In a letter Edwards wrote to Bush Wednesday, he put his implied blue-slipping of Boyle in historical context.
"Unfortunately, for the past eight years no nominee to the court from my state has been considered or confirmed by the United States Senate," Edwards wrote. "For example, Jim Wynn, a widely respected African-American judge on the North Carolina Court of Appeals, was nominated to fill a vacancy on the court in August of 1999. He was denied a hearing." Edwards suggested that in addition to Boyle, "at least one of the several recent nominees who did not receive a hearing should finally have the chance to be considered on the merits."
If Hatch proceeds to a vote on Boyle without Edwards having submitted a positive blue slip, thus officially changing the blue slip policy from what it was under Clinton, "there will be hell to pay," promises a senior Democratic Senate aide. "There will be consequences. All of the rules and parliamentary devices available to the minority will be in play." The Senate Judiciary Committee cannot have a vote on a nominee without at least some Democrats on the committee consenting to do so. And, if the Dems stick by their Tuesday agreement, that won't happen.
As mandated in Article II of the Constitution, the White House nominates federal judges -- district, circuit and Supreme Court -- "with the advice and consent" of the U.S. Senate. This means that the Senate is not merely charged with saying yes or no to the White House's picks, but is supposed to work with the White House to achieve some delicate balance, particularly if the bodies are controlled by different parties.
Since the beginning of the Senate, "senatorial courtesy" has been extended to the home state senators of nominees, wherein their feedback is requested and taken into account in the selection of judges. For the last half-century or so, this courtesy has been exercised on "blue slips" -- slips of paper on which home state senators write their thoughts about a particular candidate.
The larger question in the past few years is what role these blue slips have played -- or are supposed to play. Does one nonreturned blue slip delay a nominee indefinitely? Does one returned but negative blue slip serve as a de facto veto? And just what does "consultation" mean, anyway? A phone call the night before? A thorough vetting?
The rules are vague, the machinations secret, the interpretations utterly subjective. Traditionally, two negative, or nonreturned, blue slips from both the home state senators has meant that the nominee is a nonstarter. But one?
Republicans insist Hatch has been fair, and note that 377 judges were confirmed under Hatch's leadership during the Clinton years -- a record that falls just shy of the 382 confirmed during Reagan's tenure -- and that none of this is out of the ordinary for Washington.
In terms of sheer numbers, however, the total of Clinton nominees left languishing -- 167 -- is, indeed, unprecedented. (While usual partisan games were played by the then-majority Senate Democrats during George H.W. Bush's presidency, they only began slowing down the confirmation process when then-Gov. Clinton's campaign picked up steam. And even then, the number of Bush nominees hung out to dry was 53, fewer than a third of those of his successor.)
One other complaint Democrats have is that so many of these nominations were kept from coming to a vote for reasons known only to Hatch and the GOP leadership, through both the blue slip process and other means. Then, as soon as a Republican moved into the White House, Hatch tried to change the rules.
"There's been the view among Democrats that they were attempting to roll over us," says Schumer, "until people kicked up their heels a little bit. There's been the view that they've been testing us."
For Democrats digging in their heels -- and Schumer says that "the Democratic caucus is strong and united" on this issue -- Bush's selection of a diverse panel of nominees, presented to the world in the fancy-schmancy East Room on Wednesday, does nothing to change the fight. Though he has angered Senate Democrats by removing the allegedly liberal-leaning American Bar Association from the vetting process, in fact Bush has little to do with this battle. It's been raging since 1997, when Hatch began letting judicial nominees hang in the balance for years.
Some of this was Clinton's fault for not filling the vacancies fast enough, and for sometimes selecting nominees without consulting GOP home state senators. But much of the problem wasn't of Clinton's design. In the last couple of decades -- most glaringly in the last four or five years -- the judicial nomination process has slowed in the Senate more than ever before in the history of the country. In 1997, even Supreme Court Chief Justice William Rehnquist complained that "vacancies cannot remain at such high levels indefinitely without eroding the quality of justice."
To understand the roots of the Democrats' discontent, let us note on Bush's Wednesday list the presence of Jeffrey Sutton, a nominee for the 6th U.S. Circuit Court of Appeals, which covers Ohio, Kentucky, Michigan and Tennessee. For Democrats, at least, you can't talk about Sutton without first talking about Michigan Court of Appeals Judge Helene White.
A vacancy first cropped up on the 6th Circuit bench in 1996. But since it was an election year and the GOP controlled the Senate, the Clinton administration brought few judicial nominations forward, despite the obvious futility of Bob Dole's presidential campaign. In January 1997, Sen. Carl Levin, D-Mich., was pleased when Clinton nominated Judge White to fill the vacancy. Now she was going to get her chance for a Senate hearing and vote.
Or was she? The office of then-Sen. Spence Abraham, R-Mich., expressed serious concern about White's nomination, since he hadn't been consulted.
"We found out about the White nomination when it was announced, basically," Abraham spokesman Joe McMonigle griped to the Detroit News.
Abraham had a remedy for his displeasure. Under Senate Judiciary Committee rules, the home state senators of each nominee were asked to write their "opinion and information concerning the nomination" on official blue slips of paper. But Hatch had recently changed the language on the blue slip. "No further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee's home state senators," Hatch wrote.
So Abraham blue-slipped White. He just never handed in the paper, and her nomination never proceeded. According to Levin's office, White to this day stands as the longest pending nominee before the Senate in U.S. history.
Now, however, comes Bush's nominee for the 6th Circuit: Jeffrey Sutton, a former state solicitor, is a member of the conservative legal group the Federalist Society and a former clerk of Supreme Court Justice Antonin Scalia. He has argued on grounds of free speech in favor of tobacco companies being allowed to advertise near schools.
"Senator Levin is not familiar with Jeffrey Sutton or his record," says Levin spokeswoman Tara Andringa. "He has not been consulted by the White House on any potential circuit nominations. And he would be reluctant to return a blue slip on any judge until two well-qualified Michigan women who have been waiting for over four years and over a year and a half, respectively, have been given a hearing." (White was joined in judicial purgatory in September 1999 by another nominee, Kathleen Lewis.)
Those are fighting words. Sutton, as with the rest of Bush's nominations, will now proceed to promenade through the minefield of the Judiciary Committee.
Committee member Grassley says that a blue slip only matters if it's signed by a senator in the same party as the president. "I don't think it's binding except in the case of a senator who's of the party of the White House," Grassley says. "That's the way I've always read it, and that's the way Professor Witzel of the U. of Iowa saw it in 1957 and 1958, and that's what he told me."
But the role of senators and blue slips clearly has changed and evolved over time, and often the rules are not written down but merely exist in the head of the committee chairman.
Before the GOP took control of the Senate in 1994, Sen. Joe Biden, D-Del., then the chairman of the committee, tried to preserve the "advice" part of the "advice and consent" equation by essentially mandating that the White House consult each nominee's home state representative. If a senator hadn't been consulted, he could block the nomination by either not handing in his blue slip or urging in writing on it that the nomination not proceed to a committee vote.
From the time that Hatch took control of the committee in 1994, he says, he kept this rule. He argues that nothing changed in policy. But Democrats say that Biden allowed nominees to be blue-slipped only if the home state senators hadn't been consulted at all, while Hatch has allowed it for any reason whatsoever.
"Hatch disputes this," says a Senate Democratic aide. "But Hatch can't point to any instance when he proceeded on hearing a nominee when a blue slip wasn't returned." (Hatch's office did not return numerous calls for comment.) The aide adds that Hatch "always has an excuse" for various Clinton nominees not given the opportunity for a hearing, excuses that some Democrats are clearly not buying.
"What Hatch claims Biden did, and what Biden did, are different," Schumer says.
Likewise, tensions ran high on Sunday's "Face the Nation," where Hatch argued that he was merely using the Biden rule and Leahy all but called him a liar.
"If there was no consultation, then that applies," Hatch said.
"It doesn't say that, Orrin," said Leahy. "It doesn't say that."
"No, but that's the way I applied it, and you know that," Hatch insisted.
"Well, I don't know that at all," Leahy said.
"Well, of course, you do," said Hatch.
Even some Republican Senate staffers acknowledge that Hatch's blue slip process got out of control during Clinton's second term, and that individual Republican senators were given veto power over nominees -- even if they weren't from the nominee's home state.
"They haven't shown good faith," Schumer says, pointing out how many nominations were left unheard at the end of the Clinton administration for no apparent reason.
GOP senators disagree. Clinton didn't consult with them on a number of nominations, they say, so there was indeed a multitude of nominees who were legitimately blue-slipped.
"The Democrats are getting even for the fact that they didn't get everything they wanted in the previous Congress for judges," says Grassley, who points out that this is nothing out of the ordinary for the end of a president's term. "Look at the number of holdovers; it's essentially the same number for every fourth year of the presidency for a long time back. The bottom line, as far as I'm concerned, is that the Democrat leadership's making a mountain out of a molehill for partisan purposes. I think the process has worked well. I think chairman Hatch has been fair. I would not accept [the Democratic charge] that it's a change."
The Senate is a place of comity. And Washington is a city where more lies are told than anywhere outside Hollywood, but the word "lie" is never used. Nonetheless, Democrats suspect Hatch of doing just that. Some Democratic Senate aides laughed after Hatch expressed moral outrage at last week's delay on votes for Bush's nominees for solicitor general and deputy attorney general -- they have a list of Clinton Department of Justice nominees whose hearings were held up for months, or -- in the case of never-confirmed Bill Lann Lee, the nominee for assistant attorney general for civil rights first nominated in July 1997 -- forever.
There are nuances to the battle, of course. Many states have formed their own understandings about how judicial nominees should be vetted by senators, and those practices are founded in tradition and compromise. In New York, for instance, Schumer says that former Democratic Sen. Daniel Patrick Moynihan began a "three-to-one" practice for the selection of judicial nominees that lasted for years. The party in the White House would get three New York picks, the party without executive branch power would get one. "It was a New York bipartisan tradition," Schumer says. Likewise, in the past, Washington state Sens. Patty Murray, a Democrat, and Slade Gorton, a Republican, worked together on nominations.
Some Republicans say that their counterparts across the aisle are being ridiculous, especially considering the fact that the D's don't control the White House, the House or the Senate. "Some consideration will be given to Democratic input," Majority Leader Trent Lott, R-Miss., said last week. "But I don't think they should expect to name judges from their state."
Indeed, some Republicans counter that Democrats are asking for more than what they got during the Clinton years. Sen. Tom Harkin, D-Iowa, for instance, has complained that he wasn't even consulted when the White House began floating the name of U.S. District Judge Michael Melloy to the 8th U.S. Circuit Court of Appeals. But his fellow Iowan, Grassley, says that nothing's changed at all. Grassley says that on this matter he deferred to Harkin during the Clinton years, with the understanding that whichever one of them is allied with the party in the White House would make his state's picks. To hear Grassley tell it, Harkin's asking for a prerogative under Bush that Grassley never got when Clinton was in the White House.
"I have deferred to Sen. Harkin in the case of two nominees, Pratt and Bennett," Grassley says, referring to District Court judges Robert Pratt and Mark Bennett. "The White House never consulted me on them, and I didn't expect them to, because I had deference to what Harkin was doing with a Democratic president, just like he had deference to me during previous Republican presidents."
Grassley points out that he even demurred to Harkin when it came to the nomination of former Iowa Attorney General Bonnie Campbell to the 8th U.S. Circuit Court of Appeals in St. Louis. And Grassley took some heat for this support, since Campbell had angered Christian conservatives in her losing 1994 gubernatorial run when she said, "I hate to call them Christian because I am Christian, and I hate to call them religious, because they're not, so I'll call them the radical right."
"I got a great deal of Republican criticism because I didn't oppose Bonnie Campbell," Grassley says. Campbell's nomination made it through the Judiciary Committee, but was prevented by members of the GOP leadership from ever coming to a full floor vote. Nonetheless, Grassley argues that the important matter is that, as one of Campbell's home state senators, he was with her because he left it up to Harkin. "The [Clinton] White House had discussions, not with me but with my staff, and we told them that whoever Harkin was backing, that's who I was going to back. I'd never been consulted by Clinton during the last eight years ... I've always had deference to what the Democrat senator wanted."
But despite support from both Harkin and Grassley -- and despite a Judiciary Committee vote to allow her nomination to proceed -- Campbell's judgeship never proceeded to a full vote on the Senate floor. Democratic Senate aides say that Hatch allowed then-Sen. John Ashcroft, R-Mo., and Sen. Jeff Sessions, R-Ala., to step in and put an end to Campbell's chances.
"Hatch allowed senators well outside Campbell's circuit to block her," says a Democratic Senate aide.
Two weekends ago, at a Democratic Senate retreat, the caucus agreed to stand firm on this issue. Letters have been sent back and forth between the Democrats on the committee and White House counsel Alberto Gonzales. In a May 2 letter from Gonzales released late Friday afternoon, Gonzales politely brushed off their requests, saying that while the White House "generally agree[s] with your specific suggestions for keeping home state Senators informed and seeking their advice," it was not going to abide by requests to formally keep the senators in the loop.
"Allowing for the possibility that there may be specific instances in which strict adherence to every procedure described in your letter is infeasible or inadvisable, and allowing for more specific agreements regarding district court nominees as you suggest, we will endeavor in good faith to respect the suggestions set forth in your letter as we work on additional vacancies in the future," Gonzales wrote.
But some attempts at reconciliation seemed to be at play on Wednesday. Noticeably absent from Bush's list of 11 nominees were two would-be jurists who have been selected -- though not officially nominated -- without even a phone call to the two Democratic home state senators. Rep. Chris Cox, R-Calif., is expected to be nominated for the 9th U.S. Circuit Court of Appeals in California, though neither Sen. Barbara Boxer nor Sen. Dianne Feinstein was asked about him. A similar dynamic played out with conservative Maryland attorney Peter Keisler and his senators, unconsulted Democrats Barbara Mikulski and Paul Sarbanes.
"Look, I think this is generally a testing game," Schumer says. "The Republicans in the Senate and in the administration wanted to change the rules and they're seeing how far they can go."
It's unclear to even Democrats how much of this brouhaha can be attributed to Hatch, and how much is Hatch merely carrying water for the man who bested him in the GOP primaries last year. On "Fox News Sunday," Hatch agreed that the Bush White House needed to improve its dealings with the Senate on this issue, that it "didn't know how to consult" with senators. Hatch allowed that the Bushies "haven't met what I call a consulting standard ... to basically consult with the senators ... call them up and say, 'We're thinking of bringing such and such up for this judicial nomination. What's your viewpoint?'"
But then he took another step, charging the Democrats with being Machiavellian and macabre, saying that the Democrats are just trying to draw out the process until 98-year-old Sen. Strom Thurmond, R-S.C., dies and is replaced by a Democrat by his state's Democratic governor, and then the D's control it all.
"They're delaying this," Hatch said on "Fox News Sunday," "hoping that they can delay the appointment of judges long enough to where they get control ... They're hoping they're going to get control if something happens to Senator Thurmond. I bet on Thurmond. He wants to fulfill his contract with the people of South Carolina. I think he will. But let me tell you, it's reprehensible."
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