May 23, 2006

Good summary of the state of play.

What’s the Holdup?
More stalling, smearing, and fumbling on judicial nominees

By Kate O’Beirne

The conservative dissatisfaction with President Bush’s performance, which has recently prompted tougher talk from Bush on border security and spending restraint, now threatens the support he has enjoyed on judicial nominations. In the past year, only two federal-appeals-court nominees have been confirmed, and no nominee has even been selected for nine of the current vacancies.

Conservative activists complain that the momentum following the successful nominations of Chief Justice John Roberts and Justice Samuel Alito has been squandered, owing to White House and Senate inattention. While these White House allies saw a chance to score easy goals after the Supreme Court fights, Senate Democrats and their liberal supporters have been on vigorous defense. Sen. Harry Reid is vowing to filibuster one candidate whose nomination has been pending for five years; meanwhile, the American Bar Association (ABA) recently downgraded its rating of another nominee, and has given a unanimous “unqualified” rating to a third. If Republicans want to rally conservative voters with the issue of judges this November, they have to be more aggressive and effective in defending the nominees under assault.

“A good fight on judges does nothing but energize our base,” says South Dakota’s Republican senator John Thune. “Right now our folks are feeling a little flat. They need a reason to get engaged, and fights over judges will do that.” But some of the administration’s most loyal supporters think too many Republicans lack the stomach for the fight. In early May, key Bush allies on judicial nominations declined to attend a large meeting at the White House in order to avoid so publicly airing their serious dissatisfaction with the way the nominations are going. They fault both ends of Pennsylvania Avenue. “There is a lot of lip service paid to the importance of judges, but no real effort is made,” complains one conservative leader.

The White House will reportedly soon be sending about two dozen judicial nominees to the Senate for confirmation. The fate of these nominees will depend on the willingness of the White House and Senate Republicans to counter the kind of objections, distortions, and smears that have been leveled against previous nominees.

Brett Kavanaugh, a White House lawyer who previously worked for independent counsel Kenneth Starr, was nominated to the D.C. Circuit Court of Appeals three years ago. When the seven Republicans and seven Democrats in the “Gang of 14” blocked a Senate vote that would have put an end to judicial filibusters last year, preferring instead to allow filibusters in “extraordinary circumstances,” Kavanaugh’s nomination stalled. Owing to the delay, Kavanaugh had to be renominated by President Bush, which gave the ABA an excuse to revisit its previous “well qualified” rating. On second look, a majority of the ABA downgraded Kavanaugh to “qualified.” The committee’s chairman explained that the committee now had concerns that Kavanaugh — a former Supreme Court clerk and current White House staff secretary — lacks the requisite judicial temperament because his experience is too “insulated.”

Although Judiciary Committee chairman Arlen Specter initially balked at the Democrats’ demand for a rare second hearing on the nomination, he eventually relented and gave Kavanaugh’s critics another crack at him. Following the second hearing, Democrats who never had any intention of supporting Kavanaugh in the first place opposed his nomination, and he was sent to the Senate floor on a party-line vote. Although Majority Leader Frist pledged to hold a final vote on his nomination before the Memorial Day recess, a busy Senate calendar could further postpone it.

Republicans have also permitted district-court judge Terrence Boyle, a former aide to Jesse Helms, to be tormented for the past five years. Appointed by President Reagan in 1984, Boyle was nominated to the Fourth Circuit Court of Appeals by the first President Bush in 1991, and by his son ten years later. Although the ABA gave him a unanimous “well qualified” rating, he was blocked by former senator John Edwards, while Senator Reid launched attacks about his allegedly high rate of reversals. “In the years he’s been there, which hasn’t been very long, he has been reversed 165 times,” Reid charged. In fact, Boyle has been a federal judge for 22 years, has ruled in over 12,000 cases, and has a lower reversal rate (7.5 percent) than the national average (8.6 percent).

Boyle’s nomination was finally approved by the Judiciary Committee on a party-line vote last year, but members of the Gang of 14 are now declining to support him, owing to ethics charges recently raised by a left-wing outfit. In early May, the Center for Investigative Reporting claimed that Boyle has ruled in nine cases involving companies whose stock he owned. Harry Reid called this report “the clincher,” and it was trumpeted in the online magazine Salon. Democratic members of the Gang of 14 demanded another hearing for Judge Boyle while Sen. Lindsay Graham, a GOP member of the gang, refused to say whether Boyle still had his support.

The White House and Senate Republicans were tongue-tied in response to the charges, although phony ethics concerns are routinely raised about President Bush’s judicial candidates in the hope of complicating their nominations. Judge Roberts was accused of failing to recuse himself from a terrorist case while he was allegedly courting favor from the White House, and Senate Democrats claimed that Judge Alito’s investments in a Vanguard account created conflict-of-interest problems. In Boyle’s case, only Senate outsiders, including some of his former law clerks, have been aggressively defending him. These defenders provide evidence that thoroughly refutes some of the report’s assertions, and make a convincing case that any seeming ethical lapses were small, inadvertent, and no reflection on Boyle’s integrity. Still, given the GOP’s “one step forward, one step back” approach to judicial nominations, conservatives fear that, once Kavanaugh is approved, some Senate Republicans will be willing to toss Judge Boyle aside.

The ABA has its own recusal problems, with the result that Michael Wallace, a former Rehnquist clerk and aide to Sen. Trent Lott, faces what looks like an insurmountable problem in winning confirmation to the Fifth Circuit Court of Appeals. On May 10, the ABA committee announced that Wallace had received a unanimous “not qualified.” The Mississippi lawyer is a battle-scarred veteran of the wars over the Legal Services Corporation (LSC) in the 1980s. Wallace’s supporters call his efforts to end liberal activism and deliver services to the poor as a Reagan appointee on the corporation’s board “heroic,” but his liberal adversaries saw his reform efforts differently. Among his harshest critics 20 years ago were Michael Greco, the current president of the ABA, and Stephen Tober, who now chairs the ABA’s committee on judges. Lawyers recall Greco’s castigating Wallace at a convention in Hawaii in the 1980s; and a transcript from December 1987 reveals that when Tober, then president of the bar in New Hampshire, appeared before the LSC board chaired by Wallace, there was a heated personal exchange in which Tober accused Wallace of having a “hidden agenda.” Given this contentious history and the ABA’s insistence that those they judge avoid even the appearance of impropriety, Tober should have recused himself from pronouncing on his old adversary.

While Wallace’s allies see old grudges at play, they have little hope that GOP senators will rally to defend a nominee saddled with a unanimous ABA thumbs-down after failing to rally behind nominees even the ABA has smiled upon. Republicans willing to abandon the president’s nominees risk their voters’ doing the same to them this November.

Kate O’Beirne, NR’s Washington editor, is the author of Women Who Make the World Worse: and How Their Radical Feminist Assault Is Ruining Our Schools, Families, Military, and Sports.