While Senator Chuck Schumer (D-NY) and the candidates whom he handpicked were experiencing the thrill of victory last week, the Republicans whom Schumer and Company routed weren't the only ones feeling the agony of defeat.  Indeed, the Democrats' takeover of the Senate -- not to mention the House of Representatives -- on Tuesday was just the final defeat for several judicial nominees who had been thwarted by Schumer for years. The Cost of Missing Tuesday's Deadline

While Senator Chuck Schumer (D-NY) and the candidates whom he handpicked were experiencing the thrill of victory last week, the Republicans whom Schumer and Company routed weren't the only ones feeling the agony of defeat.  Indeed, the Democrats' takeover of the Senate -- not to mention the House of Representatives -- on Tuesday was just the final defeat for several judicial nominees who had been thwarted by Schumer for years.

Judge Terence W. Boyle. William J. Haynes, II.  William G. Myers, III.  Their names might not be as familiar as Miguel Estrada (the former filibustered and eventually withdrawn nominee for the D.C. Circuit), but they have suffered through the same ordeal.  Their confirmations have been obstructed for years by Schumer and what was until a week ago Tuesday the partisan minority of the Senate.

In fact, the list of judicial nominees obstructed by the Senate Democrats stretches far longer than those four names.  It includes Judge Charles Pickering (the former recess appointee to the Fifth Circuit) and Judges Henry Saad and Carolyn Kuhl (the withdrawn nominees to the Sixth and Ninth Circuits), not to mention Judges Janice Rogers Brown, Priscilla Owen and William Pryor, who were confirmed in the Gang of 14 deal that left Boyle, Haynes and Myers in permanent limbo.  The list even includes John G. Roberts, Jr., the current Chief Justice of the United States, who was nominated a decade apart by both Presidents Bush, but who wasn't good enough in the eyes of the Democrats to merit confirmation to a seat on the D.C. Circuit.  So he had to bide his time.

The problem is that time has run out for Boyle, Haynes and Myers.  In a story on Senator Schumer for the New York Observer, reporter Jason Horowitz writes that, "[f]rom now on, all the President's judicial appointments will need to meet the requirements of Mr. Schumer."  It's a position Schumer, himself, confirms by stating that "[j]udges are the most important" in his Democrat-controlled Senate, and that the confirmation of conservative nominees "won't happen."  In other words, it doesn't matter that Boyle, Haynes and Myers have waited a combined 12-plus years to be confirmed to the federal appellate bench.  They simply aren't going to take the seats that were reserved for them.

And, they aren't the only ones.  The time has run out for others, too, including two former Supreme Court clerks, Michael Wallace and Peter Keisler (also the current Assistant Attorney General heading the Justice Department's Civil Division), and an Idaho state judge, Norman Randy Smith, who now must be honored for just being nominated but likely will never receive their commissions.

Of course, conservatives have no one to blame but the Republicans who kept these legal luminaries waiting.  More than a year ago, in the spring of 2005 when the Grand Old Party was 55-strong in the Senate, the Republicans could have pulled the nuclear trigger and beaten the then-unknown deadline to fill the federal bench.  But the Republicans weren't willing to be quick on the draw.  Instead, they wanted to "stay the course" as things were, so symptomatic of what led to their disastrous downfall.  Then, a year later when the deadline was clear, just months before the midterms, the Republicans continued to make the nominees wait for their chance at confirmation.

The Senate Republicans waited too long -- on so many issues -- and their procrastination cost them, 6 seats to be exact.  What's worse is that by missing the deadline of a week ago Tuesday, it cost others, as well.  But the worst is that we kept telling them so.

November 16, 2006
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