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Justice and Fairness Dead in Judicial Confirmation Process

The opinions expressed by columnists are their own and do not necessarily represent the views of

No matter how much spin the Democratic leadership wishes to put on their treatment of President Bush’s judicial nominees, the fact is that the American people can see that there is no justice or fairness left in the process.  It was John Adams who said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”  The Democratic leadership’s record on judicial nominees is indisputable and indefensible; they have taken the obstruction of judges to a whole new level.

Consider that on July 17, 2008, Judge Robert J. Conrad, nominated to the U.S. Court of Appeals for the Fourth Circuit, will have been stuck in committee for 365 days.  And not only has he been there without getting a vote, he hasn’t even had a hearing to discuss his nomination.  This despite Sen. Patrick Leahy’s (D-Vermont) politically charged comments accusing Judge Conrad, a Catholic, of making “anti-Catholic remarks.”  Any reasonable person can see why it would be unfair to make such an accusation without giving the accused a chance to respond.  But again, fairness and reasonableness seem to be foreign concepts to Sen. Leahy and his liberal henchmen in the Judiciary Committee.

While Judge Conrad is unfairly held without a hearing, against his will and ours, the Fourth Circuit, to which he is nominated, is over 25 percent vacant, and the vacancy he would be filling continues to be classified as a judicial emergency.  Sen. Mitch McConnell (R-Kentucky) reported that the circuit’s Chief Judge has said that to keep up with its work the Court must rely heavily on district court judges.  That means that judges that were never appointed by the people through their senators to be appellate judges are performing the duties of appellate judges.  Sen. McConnell quoted the Chief Judge: “It goes without saying, that having to use visiting judges puts a strain on our Circuit.  In particular, it forces the Circuit’s district judges to perform double duty.”  Still, Sen. Leahy does not care.

There are many other examples (Rod J. Rosenstein, Peter D. Keisler, etc.), but this blatant disregard for the need of our courts and the American people goes far beyond any particular nominee.  Consider the research done by the non-partisan Congressional Research Service (CRS) comparing President Bush’s nominees to other recent presidents.   It found that President Bush’s appellate court nominees experience on average the highest number of days elapsed from first nomination to final Senate action.  In a recent Senate Republican Conference forum, Steve Rutkus of CRS testified that the average time to final action for President Bush’s confirmed nominees to courts of appeals is 350 days.  That figure is 47 percent higher than for President Clinton and 407 percent higher than for President Carter — 407 percent!

The figures for unconfirmed nominees are even worse.  The CRS report concluded that President Bush has had to wait an average of 906 days for final action on unconfirmed nominees, which is 106 percent higher than the average time to final action for President Clinton’s and 365 percent higher than for President Carter.

Those are the facts.  But Sen. Leahy won’t let such a simple thing as facts get in the way of political advancement.  And apparently, he doesn’t think that the very tangible adverse effect the lack of judges has on individual litigants is of particular importance either.  One of the main reasons individual litigants cannot pursue claims for grievances committed against them is because of the amount of time, and therefore money, it would take to see it through.  Roscoe Howard, a former U.S. Attorney in the District of Columbia, said at the Senate Republican Conference forum, “Especially in this day and age where lawyers charge by the hour … There is a difference between saying six months or a year, versus four or five years. … Most individuals just can’t carry that kind of burden.”  Professor John McGinnis of Northwestern Law School explained the issue in even broader terms, “It’s not only the loss to those individual litigants.  The rule of law, of which fast justice is a part, really undergirds everything we do in the United States.”  

Facts are stubborn things indeed, and in this case, they show the Democratic leadership’s unwillingness to listen to the needs of our judiciary and the American people.  They’ve chosen politics over justice and opportunism over fairness.

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