Senate Should Act So Judges Get Their Day in Court

Fights over the federal courts are nothing new in American politics. Thomas Jefferson was incensed in 1801 when his predecessor, John Adams, stuffed the federal courts with loyal members of his Federalist Party until his final hours in office. “Mr. A crowded [them] in with whip and spur,” Jefferson complained.

Later, Jefferson quietly prompted his congressional allies to repeal the law that established the new judgeships Adams filled. And still--as James F. Simon recounts in his riveting new book, “What Kind of Nation”--Jefferson fumed over the lingering Federalist influence in the courts.

For all the animus back then, there’s probably never been as much sustained political conflict over the courts as in the last 15 years--roughly the period since a Democratic Senate rejected President Reagan’s nomination of Robert H. Bork to the Supreme Court.

Tensions are again rising. On Friday, President Bush lashed the Democratic Senate for not moving more quickly to confirm his appointees. He’s planning to bang that gong again Thursday, the one-year anniversary of his first 11 nominations for the powerful Circuit Courts of Appeals.

This isn’t a trivial dispute. The federal district and appellate courts, not the Supreme Court, resolve most legal battles over civil rights, environmental regulation and social issues. Both major political parties understand that control of the courts can shape domestic policy as much as control of Congress.

Are the Democrats being unfair? Like lawyers with dueling expert witnesses, each side in this conflict has reams of statistics to back its case. Democrats note that they have confirmed 52 district and circuit court judges since they took control of the Senate last summer. Sen. Patrick J. Leahy (D-Vt.), the Senate Judiciary Committee chairman, calculates that’s more than the Republican Senate confirmed under President Clinton in 2000, 1999, 1997 or 1996.

White House aides say those comparisons mislead because Bush has nominated more judges (100) more quickly than any president before him. They complain that the Senate has approved a smaller share of Bush nominees (just more than half) than it accepted during Clinton’s first months (60%).

Amid the competing numbers, the bottom line seems to be that the Senate is approving nominees for the federal district courts at a pace even the White House considers reasonable. But the spigot is still clogged for Bush’s choices to the more influential circuit courts.

He has nominated 30 Circuit Court judges; the Senate has confirmed just nine. The Judiciary Committee voted down one, Mississippi federal judge Charles Pickering; 20 more (including eight of Bush’s original 11) are awaiting action. And given the opposition they have provoked from liberal groups, some could wait for a very long time.

As in the Middle East, bitterness over yesterday’s atrocities complicates today’s disputes. When Republicans held the Senate, they engaged in what Democrats saw as a deliberate strategy of blocking Clinton’s nominees to the circuit courts. From 1995 through 2000, the Republican Senate refused to confirm more than 35% of Clinton’s appellate court nominees. That was significantly more than the 25% of nominees the Democratic Senate rejected from 1986 through 1992 under Reagan and the earlier President Bush.

Incredibly, the Republican majority never provided a public vote (as Democrats did with Pickering) for any of the 24 Clinton Circuit Court nominees it rejected; the nominations were simply left to expire without action, largely because individual senators blocked consideration. (Under Senate tradition in both parties, the Judiciary Committee won’t consider nominees until their home-state senators sign off.)

Of the 24, only two even received a hearing. None of Clinton’s nominees to the 6th Circuit Court of Appeals ever received a hearing. One of them, Michigan state Judge Helene White, waited more than 1,500 days without a hearing.

By the time Clinton left office, the number of Circuit Court vacancies had more than doubled, from 16 to 33. Those openings have created the opportunity for Bush to nominate many judges, but also dimmed his prospects of winning their confirmations. Democrats and their allies argue that to allow Bush to tilt the circuit courts to the right would reward him for the unprecedented Republican obstruction of Clinton’s choices.

That general principle is translating into hard-nosed negotiating over specific nominations. Michigan’s two Democratic senators, Carl Levin and Debbie Stabenow, are blocking several of Bush’s nominees to the 6th Circuit, arguing that he should also resubmit some of the rejected Clinton choices. Sen. John Edwards (D-N.C.) is doing the same thing in the 4th Circuit, where every Clinton nominee was blocked by Sen. Jesse Helms (R-N.C.).

The White House response has been succinct: no deals. The administration seems to be hunkering down until November, when it is hoping voters will deliver it a Republican Senate.

Each side has an argument here. The White House says Bush shouldn’t be penalized for what Senate Republicans did before he arrived; Democrats say he shouldn’t benefit from it, either. Lost in the partisan standoff is the broader national interest in filling the vacancies.

If there is a lasting solution, it probably can be found in a two-step compromise. Step one would try to break the existing logjam through an old-fashioned horse trade: Senate Democrats could agree to accept more of Bush’s picks in return for the White House nominating a smaller number of judges the Democrats prefer (including former Clinton choices). Step two would try to prevent another crisis by writing into Senate or Judiciary Committee rules a guarantee that all future judicial nominees would receive a hearing and a public vote by the panel.

In a nation whose political allegiances are divided in half, any president will inevitably face resistance to his most ideological judicial nominees; some of Bush’s edgier choices are unlikely to be approved as long as Democrats hold the Senate majority. But the Senate clearly needs new rules of the road that will put more bodies on the bench, require senators to cast a recorded vote to block a president’s selection and assure more equitable treatment for the nominees themselves.

Even judges should be guaranteed their day in court.

Ronald Brownstein’s column appears every Monday. See current and past Brownstein columns on The Times’ Web site at: www.latimes.com/brownstein.