Unprecedented Hardball Politics: Will it Succeed?

There is no question that we are about to see a political train wreck at the national level. Our pro-life President, George W. Bush, has committed himself to appoint federal judges who respect the Constitution and who interpret laws rather than make laws from the bench. Clearly, the leadership of the Democratic Party has interpreted this to mean that he will appoint judges who may very well overturn Roe v. Wade if they are appointed to the US Supreme Court. The Clinton administration was upfront in using a litmus test and even bragged about it. The Republicans would be justified in doing the same, but have elected to state that they will not.

Even so, pro-abortion forces in the United States are deeply worried. This President remains highly popular and could very well be reelected for a second term. If such is the case, Mr. Bush will be able to nominate and place anywhere from 1 to 4 justices on the Court during his terms of office. What will their positions be on the abortion issue? That seems to be the central concern of the pro-abortion forces in the United States. Yes, there are other concerns: taxes, gun control, school aid, personal liberties and many more. However, it would seem that the cutting edge issue is abortion, even though not always openly admitted. To say that the pro-abortion side is worried is an understatement. It may well be that they could be described as panicky.

How else can we explain the totally unprecedented obstructionist tactics of Senator Daschle, since he has had control of the Senate? In the 20th century, there has been nothing comparable to his obstruction of federal court nominees. While it took Bush Sr., Reagan and Clinton an average of 81 days for their first 11 judicial nominees to be confirmed, it is now 1½ years, and eight of his first eleven have not yet even had committee hearings.

In the past, there have been individual instances of holding bills to prevent their coming to a vote and passage, but one looks in vain to find a precedent for the current wholesale blockage of about 150 bills that have passed the US House of Representatives, often by very large margins. Central to these have been pro-life bills. In almost every case, if such bills had been brought to the floor of the Senate for an up or down vote, they would have passed. A great many of them would have passed over a filibuster. However, Mr. Daschle’s tactic has been that if they are never brought to a vote, there is no chance of them passing.

Such unprecedented, hardball politics carry a future risk. Having been stung by Democrat leadership, if the Republicans regain control of the Senate, it would be entirely possible to see them retaliating in kind — a risk that Senator Daschle is taking. Why has he been brought to these extreme measures? The answer would seem to be obvious. Those special interests that dominate and control the national Democrat Party have apparently told him that he must, under no circumstances, allow the federal courts to become more conservative. The National Education Association, ACLU, NOW, trial lawyers, Hollywood, Planned Parenthood and its allies, may well have sent a firm message to Mr. Daschle, “Stop them by any means possible. Take the risks inherent in this unprecedented type of obstructive tactics. Hope you’ll control the Senate after the 2002 elections and regain the presidency in two years. Under no circumstances should you allow Mr. Bush to appoint the type of federal judges he has pledged to appoint. Remember that nominees to the US Supreme Court almost always come from the appellate courts. Therefore, it is the appellate court appointments that you must obstruct in every way possible.”

Has, in fact, Senator Daschle’s track record been one of unprecedented obstruction? All we have to do is look at the evidence. By first looking at the legislative record (see graph on page one), we note that of all of the pro-life bills that have come before Congress and been passed by the House, Mr. Daschle has allowed only one to be voted upon by the Senate – the Born Alive Infant Protection Act. This was probably because he knew that it had an 80% to 90% approval rate. As a result, he arranged that it be passed by a voice vote so that there would be no individual records.

Judicial Appointments to Appellate Courts 2001-2002
There are a total of 179 circuit court judicial positions, which are lifetime appointments. In many ways, what a president can do in four years is important, but it is said that what is of greater importance is the judicial legacy he leaves behind him, for that lives on for decades.

First, let’s note the Fifth Circuit Court of Appeals, which has 17 seats. When Bush took office, it had 3 vacancies. No new ones have occurred. He has nominated 3 candidates, one of whom was confirmed. The other 2 have been “borked.” The first was Judge Charles Pickering, the second, Judge Patricia Owen. Both were highly qualified and had been recommended by bipartisan authorities, including the American Bar Association, which is one of the most liberal groups in the United States. Each was subjected to several months of intense criticism. Finally, each in turn was defeated in the Senate Judiciary Committee, on a straight party line vote, by a margin of one. It seems clear that these two nominees have been defeated to send a message to President George W. Bush. “These two people were pro-life and we don’t want pro-lifers on the circuit courts, so don’t send us any more.” Bush’s reaction to this has been that he will continue to nominate the same type of judges.

Data is from the Administrative Offices of the U.S. Courts, the U.S. Senate Website, and the Federal Judicial Center, through the efforts of Tom Jipping J.D. at Concerned Women for America.

Let’s look at the Fourth Circuit Court of Appeals, which has 15 seats. Bush inherited 5 vacancies and no new ones have occurred. One seat has been filled and there are 2 nominees who have not had hearings. So, at this point, there are 4 vacancies.

The most outrageous situation is the Sixth Circuit Court of Appeals. It has 16 members, but on January 1, 2001 there were 7 vacancies and one more has occurred. That is a total of 8 vacancies out of a 16-member court. Bush has nominated 8 new judges, but only one has been confirmed and 7 have not yet even had hearings. We can point to the fact that 2 nominees, Deborah Cook and Jeffery Sutton, have been waiting for 18 months for hearings before the Senate Judiciary Committee, and none have been held. It is all but impossible for this Circuit Court to function at half-strength. Yet, it would seem that Daschle’s evaluation of these 7 nominees is that, by his judgment, they are too conservative, therefore, he will not allow hearings. He’ll do this in the hope that his control of the Senate will be maintained after the next election and that President Bush will then acknowledge the futility of nominating pro-life judges and send up nominees that the pro-abortion forces can accept. This is a political variant of the old game of chicken. Who is going to give in first?

If you analyze the numbers in the chart above, you will see that during the 96 months of the Clinton Presidency, vacancies on all of the appellate courts, nationally, averaged 20. During George W. Bush’s time in office, vacancies have been over 30 in 15 of the 21 months, to date, and have averaged 31. This is a 50% higher vacancy rate on the Federal Appeals Courts. Clearly this is because of Daschle’s unprecedented obstructions. This is also true if we go back further to George Bush, Sr., who had a Democrat Senate, but things were a little more polite back then and his average vacancies were 22.

It would seem that the pro-abortion forces in Washington are reacting in a rather desperate fashion and are using a tactic never used before. They are stalling and obstructing legislation and, more specifically, appellate court appointments, as well as other federal appointments, in the desperate hope that they can keep conservative and pro-life nominees from being appointed. Failing this, their big worry is that the composition of the US Supreme Court will be changed from a pro-abortion position to a more pro-life one, and from other more liberal to more conservative positions.

The big question is, who will win this tug of war? Much depends on the results of November’s election, and much more will depend on the result of the presidential election in 2004. Stay tuned.