Lost opportunity

Regarding the confirmation process of circuit-court nominations, Republicans were rightly aghast over actions of the Democratic-controlled Senate during the 107th Congress (2001-2002). The Senate confirmed only 17 of President Bush’s 32 nominations to the circuit courts of appeal. As the 109th Congress approaches adjournment, conservatives should once again be aghast over the confirmation record of circuit-court judges. This time, however, much of the blame must be shared by outgoing Senate Majority Leader Bill Frist and the White House.

According to data compiled by the Justice Department’s Office of Legal Policy, if no more circuit-court nominees are confirmed, the Republican-controlled Senate will adjourn leaving 16 circuit-court vacancies unfilled. Thus, the vacancies of the Frist Senate will exceed by one the number that were returned by the 107th Congress under the control of then-Majority Leader Tom Daschle and then-Judiciary Committee Chairman Patrick Leahy. So far, moreover, the Democratic-controlled 107th confirmed more circuit-court nominees (17) than the Republican-controlled 109th (15). And Mr. Frist considers himself presidential timber?

Yes, Democrats continued to play an obstructionist role in the 109th. But they were in no position to bottle up appellate-court nominees by refusing to hold hearings for some of them or by declining to cast a committee vote after a hearing or by failing to schedule a nomination for debate on the Senate floor after a favorable committee vote was cast. When Democrats regained majority status after Sen. James Jeffords defected from the Republican Party in May 2001, they exploited variations of all three tactics during the 107th Congress. Throughout the 108th Congress (2003-04), after Republicans regained a slight majority (51-49) in the 2002 elections, Democrats resorted to an unprecedented campaign of filibustering to block circuit-court nominees. A major logjam was broken in the late spring of 2005 when the so-called Gang of 14 (seven Democrats and seven Republicans) responded to threats by the Republican leadership to invoke the “nuclear option,” which would have used parliamentary tactics to end judicial filibusters. The deal brokered by the Gang of 14 opened the door to the confirmation of five of the 10 nominees filibustered by the Democrats. The Senate confirmed 10 others.

The White House has not even bothered to submit nominations for six of the 16 circuit-court vacancies, including the seat on the 3rd Circuit formerly occupied by Samuel Alito, who was confirmed to the Supreme Court in January. The Senate hasn’t bothered to hold hearings for five of the other 10 vacancies. In January, Mr. Leahy will reclaim the gavel at Judiciary, and Harry Reid will be in charge of scheduling floor votes. On the crucial issue of circuit-court nominations, the 109th Congress was a lost opportunity.