White House, Daschle Strike ‘Deal’ on Some Judicial Confirmations

After nearly two months of negotiation, the White House and Senate Democrats reached an agreement this week that will enable some of President Bush’s judicial nominees to get up or down votes on the Senate floor.

In total, 25 nominees whom Senate obstructionists deem "uncontroversial" will be voted on by the full Senate after their nominations have languished due to the systematic blockade imposed by Democrats. In return, the President agreed to surrender his constitutional right to make recess appointments for the remainder of his current term which ends January 20, 2005.

Senate Minority Leader Tom Daschle has blocked Senate consideration of all judicial and executive branch nominations in retaliation for the President’s recent exercise of this constitutional prerogative, as he recently temporarily installed William Pryor to the U.S. Court of Appeals for the 11^th Circuit and Charles Pickering to the 5^th Circuit during separate congressional recesses.

On its face, this deal may appear to be a good one. At a time when the nation’s federal judiciary is in dire need of judges to fill vacant seats on the bench, 25 nominees, who otherwise would be stuck in limbo, will finally get a vote in the full Senate. However, the "deal" accomplishes nothing to fix the much bigger and lasting problem: the Senate’s neglect and abuse of its constitutional obligation in the judicial confirmation process.

For the past three plus years, Senate Democrats have worked to appease their well-funded, liberal special-interest base by employing "all means necessary" to block as many of the President’s judicial nominees as possible. In fact, never before in our nation’s history has a judicial nominee to a federal appeals court been defeated by filibuster, a parliamentary tactic requiring 60 votes to be confirmed rather than the simple majority, or 50 plus one, that the Constitution prescribes. Currently, Senate Democrats are filibustering five appeals court nominees, and one filibuster victim, Miguel Estrada, withdrew his name from consideration after waiting nearly three years for Senate confirmation.

Character assassination, lies and distortions have been the Democrats’ tactics of obstruction since they lack any credible reasons for their opposition. Qualified men and women, with distinguished careers and unquestioned integrity, are being denied an opportunity to sit on the federal bench as Senate Democrats have determined it better to use them as political pawns, bargaining chips and fundraising fodder than fully staffing our federal courts.

To put the obstruction and abuse into perspective, only four judicial nominees have been confirmed this year. And even if you concede that judicial nominations are treated "differently" in presidential election years (which should not be the case), one need only to look to the recent past to understand the actual obstruction that has taken place.

Going back to 1980, the average number of judicial nominees confirmed by the Senate in presidential election years is 45. The average number of appeals court nominees confirmed in those years is eight. Thus far, thanks to Senate Democrats, zero appeals court nominees have been confirmed in 2004.

Under the deal, Daschle got the pleasure of hand-picking a mere five appeals court nominees, and 20 district court nominees, to be allowed up-or-down votes on the Senate floor. We don’t profess to be great mathematicians, but by our count that would equal a grand total of 29 confirmed this year — less than 65 percent of the recent historical average.

Not only does this so-called deal reward Daschle and his Senate cohorts for their deplorable behavior, but it provides them fodder to deflect attention from their amassed record of obstruction. In addition, it ensures continued and, perhaps, intensified obstruction in the future.

Think about it. What does it say when the White House is negotiating with the Minority Leader of the United States Senate in order to fulfill constitutionally required obligations? Worse, what does it say when one branch of government is able to force another to forgo its constitutional powers?

This was not lost on Senator Charles Schumer (D-NY) who responded to the terms of the agreement by gleefully proclaiming, "I think the bottom line is that the administration surrendered."

Nor was it lost on several GOP Senators and aides, including John Cornyn (R-TX), who articulately stated, "My concern is now that the Democrat obstructionists have successfully negotiated in exchange for their hostages, what will stop them from blocking all future nominees? What will stop future Congresses from employing similar tactics? When does it end? Now that their tactic is determined to be successful, I have no doubt but that it will be employed by others when the shoe is on the other foot."

As an editorial in The Hill newspaper pointed out, "If you reward bad behavior, bad behavior is what you will get."

Bad behavior is no stranger to politics. But this was one dreadful and despicable backroom deal that may permanently encourage it.

• Return to Latest News Index
• Return to Confirmation Watch Index