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Judgeship Game Cycles On

January 21, 2002

The impasse that is keeping new federal judges off the bench and impeding the judicial process brings to mind two aphorisms.

1. What goes around comes around.

For the eight years Bill Clinton was in the White House, Republican senators charged with assessing candidates to the federal bench ignored, patronized and humiliated the men and women the president picked. Some of Clinton's nominees waited years before the Republican-controlled Senate held a hearing or a vote. Those who did get a hearing were often harangued for speeches they'd given or law review articles they'd written 20 years before. The Senate rejected Missouri Supreme Court Judge Ronnie White after then-Sen. John Ashcroft baselessly labeled him "pro-criminal."

In the end, Clinton got 374 judges confirmed in eight years, compared with Ronald Reagan's 382 and the senior George Bush's 193 in four years. But the pace was so slow and the Senate so vindictive during Clinton's presidency that even Chief Justice William H. Rehnquist implored Republican senators to tone it down.

Now, it's payback time, and with Democratic senators bedeviling the Republican president, Rehnquist is again pleading. Of the 80 judicial nominations that George W. Bush made during his first year, the Democrat-led Senate has confirmed only 28. With about 100 of the 862 judgeships now vacant, the remaining federal judges are buried under burgeoning court dockets. To that oppressive workload add the yawning income gap between salaried federal judges and lawyers in private practice and the lengthy, bruising confirmation battles. It's little wonder that Rehnquist and others worry that the federal judiciary will not draw the best and the brightest, lifetime tenure notwithstanding.

Judiciary Committee Chairman Patrick J. Leahy has argued that the Sept. 11 terrorism and its aftermath, including the anthrax spores that drove senators out of their offices, slowed the confirmation pace. Moreover, when Bush decided to replace the American Bar Assn.'s independent quality check of nominees with vetting by the conservative Federalist Society, the Senate wisely beefed up its own credentials review, which took time.

Still, Democrats have refused to schedule hearings on Bush's most controversial picks, including some with archconservative views on civil rights and church-state separation. Which leads to a piece of wisdom the senators' mothers should have taught them:

2. Two wrongs don't make a right. Fact is, the Senate has a constitutional obligation to offer advice and consent on presidential nominations. If senators have objections to some of Bush's nominees they should have the courage to put the nominations up for vote and then vote "no."

To simply delay is unfair to the nominees, whose lives are put on hold and whose records are microscopically criticized. It's unfair to sitting judges who have to shoulder the extra workload because of vacancies, and, mostly, it's unfair to Americans with business before the federal courts or just a stake in an independent, high-minded judiciary.

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