It’s the Courts, Stupid!

But even more than that, it’s the courts. To wit:

Testimony of Ralph G. Neas
President, People For the American Way
Regarding Vacancies and the Federal Courts
The House Judiciary Subcommittee on the Constitution
Thursday, October 10, 2002

Good morning, Mr. Chairman and members of the Committee. On behalf of the 600,000 members and supporters of People For the American Way, I thank you for the opportunity to testify today on the subject of vacancies and the federal courts.

I believe the future of the federal judiciary is the most important domestic issue facing the Congress, the presidency, and the nation. Indeed, judges confirmed today will be interpreting the Constitution and the laws of the land for decades to come. And what they decide will have a profound impact on the daily lives of all Americans, their children and their grandchildren. With so much at stake, we urgently need a national debate.

It is heartening to us at People For the American Way that the Senate Judiciary Committee is taking its constitutional responsibility seriously and conducting a meaningful review of a number of President Bush’s nominees. At the same time, the Senate has made significant progress in addressing the extraordinary number of vacancies inherited from the previous Republican-controlled Senate.

The American people would be appalled if they knew that as a result of right-wing Senators’ unprecedented obstructionism, 35 percent of President Clinton’s appellate court nominees were blocked from 1995 to 2001; 45 percent failed to receive a vote in the Congress during which they were nominated. Many did not even get a hearing.

As a result of the right-wing blockade, judicial vacancies skyrocketed from 65 in 1995 to 111 in 2001. There is no question that right-wing groups and politicians hoped that a Republican president would take advantage of all the vacancies their Senate allies perpetuated by filling them with right-wing ideologues.

Currently, Republican-nominated judges hold a majority on 7 of the 13 circuit courts of appeal; three have a majority of Democratic nominees and three are divided. If all of President Bush’s current nominees are approved, such judges will make up a majority on 10 circuit courts. And by the end of 2004, Republican-appointed judges could make up a majority on every one of the 13 circuit courts of appeals. And if these judges are right-wing ideologues, the future of many of our civil rights and constitutional freedoms would be in serious jeopardy.

It would have been understandable for Senators Leahy and Daschle to treat judicial nominees the way nominees were treated from 1995 to 2001. Instead, they have moved promptly and responsibly to fill judicial vacancies since taking control of the Senate Judiciary Committee and the U. S. Senate in July, 2001. It is terribly unfair and hypocritical for the very same people who helped cause the delay, and who told us that vacancies were not a problem a few years ago, to now charge Senators Daschle and Leahy with improper delay and then use these charges to try to stampede nominations through the Senate.

The charges are also totally inaccurate. In the first year during which Democrats controlled the Senate, beginning in July, 2001, the Senate confirmed 59 nominations to the federal judiciary. These 59 confirmations are nearly four times the number confirmed during the entire first year of the first Bush administration (1989), and more than twice the number confirmed during the first year of the Clinton administration (1993). This pace is significantly ahead of what occurred when Republican Senators deliberately delayed the process from 1995 through 2000. For example, more judges were confirmed by the Senate in the first year of Democratic control than were confirmed in all of 1995, 1996, 1997, 1999, or 2000.

As of yesterday, 80 nominees had been confirmed and 17 more had been approved by the Senate Judiciary Committee. During the Reagan, Bush, and Clinton presidencies, four nominees on average were confirmed each month. By contrast, after the first 15 months of Senator Leahy’s chairmanship, the average has been 5 to 6 confirmations per month. At this rate, there will be more judges confirmed during these four years than ever before in our history.

The current pace of appellate court confirmations exceeds the confirmation rate of the Senate when it was under Republican control, contradicting right-wing claims. The Senate has thus far confirmed 14 appellate court nominations, 11 of which were confirmed during the first year of Democratic control. In comparison, Republicans averaged less than eight confirmations per year between 1995 and 2000.

Because of the delay and refusal to vote on President Clinton’s nominations during that period, the total number of vacancies on the courts of appeals more than doubled from 1995 to 2001, growing from 16 to 33. That’s a remarkable statistic. In the last year, despite several new vacancies, the total number of appellate court vacancies has decreased to 27. In fact, if Republicans had moved at the same pace that the Democratic Senate has moved since July 2001, there would now be only 6 vacancies on the courts of appeal.

Mr. Chairman, no presidential nominee should be guaranteed confirmation to a lifetime seat on the federal bench. Last summer, more than 200 law professors sent a letter to the Senate Judiciary Committee on the issue of judicial nominations and the Senate’s co-equal role in the confirmation process. Because federal judicial appointments are for life and significantly affect the rights of all Americans, the law professors wrote, nominees must demonstrate that they meet appropriate standards for confirmation. These standards include “an exemplary record in the law,” a “commitment to protecting the rights of ordinary Americans,” and a “record of commitment to the progress made on civil rights, women’s rights, and individual liberties.”

It is not only appropriate, but imperative, that Senators continue to review carefully the records of President Bush’s federal judicial nominees and require that they demonstrate a commitment to upholding the role of the federal government in dealing with major national issues and protecting Americans’ constitutional rights and liberties. If nominees do not meet this standard then they should not be confirmed. Too much is at stake for any other result.

The current unprecedented situation calls for an unprecedented bipartisan solution. The President should reject the demands of the far right, and submit more moderate nominees who are truly qualified for the federal bench. This should include genuine consultation with Senators of both parties both before and after nominations are made. Consensus and compromise should be the goals. This is the way that more progress can responsibly be made in further reducing the number of vacancies on the federal courts.

Mr. Chairman, the debate over the federal judiciary is part of an epic battle over the role of the federal government. The two-prong strategy of right-wing Republicans is simple but breathtakingly radical.

First, enact a permanent tax cut which will eliminate $6 trillion in revenue over the next 20 years. That will in effect starve the federal government so it will be unable to fund many vital governmental functions performed since the New Deal.

The second prong is to pack the federal judiciary with right-wing ideologues whose judicial philosophy would turn back the clock on civil rights, environmental protections, religious liberty, reproductive rights and privacy and so much more.

Take away the money. And then take away legal rights that have been part of our constitutional framework for 65 years.

We do indeed need a national debate. Before the American people wake up one morning and discover that their fundamental rights and liberties have vanished overnight.

Thank you again, Mr. Chairman, for the opportunity to testify.

And thank you, Mr. And Ms. Faithful Reader – especially those of you who tend to disagree with me yet keep an open mind. You are great Americans. (And, c’mon – you’re coming around a little on some of this stuff, aren’t you? A little?)

Someday: Back to your money.