The destruction of the confirmation process for federal judges began with the nomination of Robert Bork to the United States Supreme Court and accelerated when Clarence Thomas was viciously attacked — but confirmed — in 1991.
As the first Bush presidency wound down, the Democrats went into an unprecedented slowdown in the processing of judicial nominees, and there were more than 50 (including John Roberts' first nomination to the Court of Appeals for the District of Columbia Circuit) that the Senate didn't act on in 1992.
Though the Republicans who controlled the Senate during the last six years of the Clinton administration refused to act on a handful of judicial nominees, they engaged in none of the nominee bashing that characterized the circuses that surrounded the Bork and Thomas confirmation hearings and floor debates.
Justices Ginsburg's and Breyer's confirmations were both handled in the appropriate fashion, and both nominees were easily confirmed.
Some GOP payback for the Democrats' conduct in 1992 did occur in the Clinton years, especially by then Sen. Jesse Helms, who refused all nominees for vacancies on the 4th Circuit Court of Appeals, historically allocated to North Carolina because he had seen his own candidate, Judge Terrence Boyle, blocked from a seat on the 4th Circuit during the first Bush presidency.
Sen. Patrick Leahy, incoming chairman of the Judiciary Committee, has argued that the Republicans blocked more than 60 of President Clinton's nominees to the lower courts. However, he inflates his numbers by including them in that a raft of nominees made so late in the year 2000 as to preclude even quick vetting.
Clearly, however, the GOP did engage in some payback for the refusal of Democrats in 1992 to act on the first President Bush's nominees. Although it would be better for the process if the Senate returned to the old tradition of keeping the confirmation open to judicial nominees whose paperwork and hearings are complete on routine schedules by midsummer in the fourth year of a presidency, absent a comprehensive settlement of the rules for nominees, we have to expect a shutdown of the process for appeals court nominees in early 2008.
The troubling news is that it may shut down even earlier, and indeed may have already been shut down.
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