Nick Kessler

Connecting the dots

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Saturday, March 22, 2003
TBogg and Atrios report that Senators Levin and Stabenow are opposing right-wing judicial nominees from Michigan. TBogg links to a National Review online article by Byron York, which discusses letters about these nominees written by White House Counsel Alberto Gonzales. Gonzales is irate with the Michigan Senators for refusing to let Bush's nominees move forward until the administration reconsiders some Clinton nominees whom the Republican Senate had blocked. Gonzales insists that after Democrats blocked the first George Bush's nominees, no Republican ever asked that they be renominated:

"More than 50 nominations to the federal courts lapsed without Senate action at the end of the previous Bush administration in 1992.... No one ever attempted to claim that fairness or any other consideration obliged President Clinton to resubmit these names, and he did not."

Is it true that no Republican ever claimed "that fairness or any other consideration obliged President Clinton to resubmit" George H.W. Bush's failed nominees? Not if you believe conservative commentator Robert Novak, who wrote in 2001 that Jesse Helms had held up President Clinton's nominees to the Fourth Circuit due to Terrence Boyle's failure to reach that court. Boyle was nominated in 1991 by George H.W. Bush but blocked by Senate Democrats, and Novak explained that "Sen. Jesse Helms made clear to Clinton that no new judge would sit on the 4th Circuit until Boyle did." The only thing that's unclear is whether Helms was thinking of "fairness" or some "other consideration."

As reported by York, Gonzales also pretends that this administration has gone to heroic lengths to accommodate Democratic senators, boasting that they offered to reconsider two of Clinton's Michigan nominees: "Gonzales said the White House had offered to consider the two failed Clinton circuit court nominees, White and Lewis, for nomination to lower federal courts. 'In our view, this was a proposal that reflected exceptional generosity, good faith, and respectful bipartisanship,' Gonzales wrote." (Note that the Republicans offered only to place White and Lewis on "lower federal courts," not the more powerful circuit court where their nominations by Clinton had stalled.)

But despite Gonzales' display of self-congratulation, this sort of offer was hardly unprecedented, as demonstrated during Helms' standoff with the Clinton administration: "The Clinton White House tried to cut a deal with Helms during the president's second term to nominate Boyle plus two Democrats. The deal was rejected." So much for "exceptional generosity, good faith, and respectful bipartisanship."

York's article ominously portrays the Michigan Democrats' action as "all the more remarkable because much of the Sixth Circuit is in what the Administrative Office of the U.S. Courts calls a 'judicial emergency.' The court normally has 16 members, but half of those seats are now empty." This is typical of conservatives who condemn Democrats for daring to block Bush's nominees during a "vacancy crisis." However, judicial vacancies didn't amount to much of a crisis for Republicans when Bill Clinton was the one picking judges. Jesse Helms, to pick one example, let several vacancies on the Fourth Circuit sit for years, and rather than let Clinton nominees fill these spots he "introduced legislation in the Senate that would eliminate two of those seats altogether."

Helms' efforts had plenty of support from fellow Republicans. In 2000 Harvie Wilkinson, Chief Justice of the Fourth Circuit and a Reagan appointee, was in no hurry to see the vacancies on his court filled. Instead, he insisted that "If you have a court of 12 people, you can reach a decision much more quickly and efficiently, than if you have a court of 20 to 23 people." Helms used Wilkinson's public denial of any "vacancy crisis" to pass off his Clinton obstruction as fiscal responsibility: "'The point is the chief judge of the 4th Circuit says I don't need an additional judge,' Helms said. 'And it costs $1 million a year to post a judge.'"

Of course, once Clinton left office, Republicans somehow forgot their heartfelt belief that judicial vacancies were best left unfilled: "Helms, a Republican, spent eight years blocking nominations by President Bill Clinton to the court, arguing that adding more judges was a waste of taxpayer money. But suddenly Helms is not so defiant. 'It's his call,' Helms told The Observer, referring to President Bush's anticipated nominations of at least one conservative North Carolinian to the court."


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