Almost two years after President Bush announced his first nominations to the federal courts, there’s finally a good reason for senators to oppose those nominees. They’re too young.
“The average age of a circuit court nominee at the time of confirmation has gone from a high of 55.9 years under President Dwight D. Eisenhower to a low of 48.7 years under the first President Bush. The average age of President George W. Bush's confirmed circuit court nominees was 50.5 during the 107th Congress,” writes Michael J. Gerhardt in the Outlook section of the March 2 Washington Post. “The average age of the nominees awaiting confirmation to appellate seats is 50.1.”
Ah. That must be why the Democrat-controlled Senate Judiciary Committee dragged its feet and failed to hold so much as a hearing for 12 of President Bush’s nominees to the U.S. Appellate Courts -- because of their relative youth and inexperience.
Strangely, this may be the first time that reason has been cited.
Bush made his first nominations on May 9, 2001. Four of those 11 nominees never even got a hearing before the Judiciary committee, which was run by Democrats from June 2001 until January of this year. That’s especially strange, because none of the nominees was controversial.
In fact, the New York Times on May 10, 2001 quoted then Senate Minority Leader Tom Daschle: “I’m pleased the White House has chosen to work with us on this first group of nominees.” The Times also reported, “none of the Senate Democratic leaders who spoke to reporters at a news conference today -- Mr. Daschle, Senator Patrick J. Leahy of Vermont, the top Democrat on the Judiciary Committee, and Senator Charles E. Schumer of New York, top Democrat on that panel's courts subcommittee -- criticized any of the nominees.”
The case of Miguel Estrada is illuminating. Estrada waited from May of 2001 until September of 2002 before getting his hearing. His nomination was not voted on, however, until the Republicans retook control of the Senate this year. Estrada is now being filibustered by Democrats in the Senate.
The Democratic opposition doesn’t especially surprise Gerhardt, a law professor at William and Mary. “Estrada, nominated at the tender age of 39, had practiced law for less than a decade. At his confirmations hearings, he said little about his judicial philosophy,” he wrote. Further, Estrada “has left virtually no paper trail, making it difficult to attack his record in confirmation hearings.”
But his opponents didn’t try very hard to attack Estrada. As the Washington Post pointed out in a March 3 editorial, during his hearings “nobody asked Mr. Estrada his view of basic methodological questions that divide the judiciary -- questions that he certainly could have answered and that would have shed light on how he would approach cases.”
The White House also promised that Estrada would answer any questions senators submitted in writing by Feb. 28. Not one senator took advantage of the unusual offer -- and since no questions were asked, none were answered.
Instead, Democrats are insisting that Estrada reveal his opinions by releasing confidential memos he wrote while working as an assistant solicitor general under the Bush 41 and Clinton administrations. All seven living former Solicitor Generals have signed a letter opposing such a release -- saying to do so would harm the legal process.
Gerhardt is also worried that, “with Republicans now in control of the Senate, (Bush’s) judicial nominees have no incentive to testify openly about their views before the Judiciary Committee.”
But in fact, judicial nominees shouldn’t be airing their views before they’re on the bench. According to the American Bar Association rules on judicial conduct, “A candidate for judicial office shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”
Democratic senators, including Schumer and Leahy, have called the ABA’s endorsement the “gold standard” for nominees -- and Estrada was listed as “well qualified”, the association’s top ranking. Somehow the panel at ABA must have overlooked Estrada’s inexperience.
Of course, Gerhardt may be on to something. All of Bush’s selections are older now than they were when he nominated them. Maybe, if the process drags on long enough, they’ll finally be old enough to be acceptable to Gerhardt and Senate Democrats.
But I wouldn’t hold my breath.