Needless Rules Keep Court Seats Empty

Among the 828 judicial seats in federal courthouses across the country there are 135 empty chairs, the largest number of vacancies in modern history. The Bush Administration has already taken well-deserved criticism for slowing the judicial nomination process to a crawl in the last three years by subjecting each potential nominee to rigid ideological litmus tests on such issues as abortion. More recently, the White House has promulgated unnecessary new rules that now threaten to altogether derail confirmation of Bush’s 44 current nominees.

Furious that someone associated with the Senate Judiciary Committee allegedly leaked the sexual harassment charges that Prof. Anita Hill leveled at Judge Clarence Thomas in hearings on his nomination to the U.S. Supreme Court, President Bush is trying to limit the access of senators to investigative reports on all judicial nominees.

These rules amount to intolerable interference with the Senate’s constitutional duty to “advise and consent” on the President’s nominations.

Under the old rules, all senators on the Judiciary Committee could read the actual FBI reports on a nominee. Over the last 12 years, when these rules were in effect, the committee considered the nominations of more than 1,500 judges, U.S. marshals and U.S. attorneys without a single leak of FBI information.

Technically, in fact, the FBI report on Thomas was not leaked; Hill’s charges came to light when the press obtained from a source a sworn statement that she submitted directly to the Judiciary Committee, not the FBI.

The President now bars committee members from seeing any full FBI report and allows them instead to read only a summary prepared by the White House.

This procedure makes it cumbersome for the senators to discuss nominees among themselves, perhaps prompting the committee to commission its own background investigation of nominees. Moreover, the summarization of the reports by the White House takes time and raises questions about the thoroughness and credibility of the summary itself.

These ill-conceived and warrantless rules so angered the Judiciary Committee--and justifiably so--that last November it unanimously called on the White House to rescind them.

In recent weeks, the White House has begun talks with committee members to find a compromise. But the senators rightly see no middle ground here.

Bush’s own interests are served by retreat. By further slowing or even stalling the confirmation process, his new rules will only exacerbate caseload pressures caused by the growing number of unfilled judgeships. By insisting on these rules, Bush is arguably subverting the Senate’s duty to independently evaluate presidential nominees and, in so doing, jeopardizing this nation’s long and honored tradition of an independent judiciary.