WASHINGTON -- On Feb. 8, Jonathan Adelstein was nominated by President Bush to a Democratic vacancy on the Federal Communications Commission (FCC). On March 18, Kyle McSlarrow was nominated to be deputy secretary of energy. They are non-controversial selections, well known and well liked by senators of both parties. Yet, neither has been confirmed by the Senate, and probably neither will be confirmed before the 107th Congress winds up this year.
The reason for this anomalous situation is the poisonous state of the U.S. Senate. Adelstein and McSlarrow have been prevented from holding the high federal offices to which they have appointed in retaliation and counter-retaliation for the blocking of the Republican president's appellate judicial nominations in the Democratic-controlled Senate. This atmosphere, in turn, is caused by retribution for mutually inflicted wounds, festering over the past four decades.
Here is a virtually non-functioning Senate, like nothing I have seen in 45 years of covering Washington. It does not confirm nominees, does not pass major legislation and does not approve budget limits. What really makes this Senate unique is the absence of the chamber's traditional collegiality. Many of these senators really don't like each other, and it sours their work product.
Jonathan Adelstein and Kyle McSlarrow are victims of the dysfunctional Senate. Adelstein has been a Democratic Senate staffer for 15 years and, since 1995, a legislative assistant for his fellow South Dakotan, Majority Leader Tom Daschle. McSlarrow, currently chief of staff to Energy Secretary Spencer Abraham, was a Republican Senate staffer for several years (serving as chief counsel to GOP majority leaders).
Under normal procedures, they would have been serving in their offices long ago. Indeed, the Senate Energy Committee approved McSlarrow on June 5. The Commerce Committee cleared Adelstein on July 22. In the tensely partisan Senate, it had been quietly decided that Democrat Adelstein and Republican McSlarrow -- joined at the hip
-- would be confirmed together.
However, the normally congenial Senate Republican Leader Trent Lott was furious. His fellow Mississippian and former political ally, Federal District Judge Charles Pickering, had been rejected for an appellate judgeship by a Democratic party-line vote in the Senate Judiciary Committee. Then, on Sept. 5, the same committee turned down another appellate nominee, Texas Supreme Court Justice Priscilla Owen.
When Congress returned from its August recess, Lott blocked Adelstein's confirmation. Daschle retaliated by blocking McSlarrow. In the old days of the Senate, this impasse could have been resolved by a quiet conversation in the cloakroom. Not in the autumn of 2002, however. The FCC must get by with one less commissioner while Adelstein toils as Daschle's aide. McSlarrow functions as Energy's chief operating officer but is barred by statute from supervising nuclear weapons and from other duties of the deputy secretary.
Last week, Democrats offered to dislodge the stalled confirmation of University of Kentucky Prof. John Rogers as an appeals judge in return for Adelstein's confirmation. No deal. There are too many other stalled appellate nominations. University of Utah Prof. Michael McConnell and Washington, D.C., lawyer Miguel Estrada have sufficient votes in the Judiciary Committee, but Chairman Patrick Leahy will not bring them to a vote.
Leahy had promised Sen. Strom Thurmond, the 99-year-old South Carolinian in his final months of service, that the appellate nomination of his former aide, District Judge Dennis Shedd, would get a committee vote -- scheduled for Tuesday morning this week. But thanks to pressure from African-American groups, Thurmond's office was informed late on Monday that Shedd was shelved.
All these stalled judicial nominees are well qualified, but fail to pass ideological tests. Such a litmus is proudly admitted only by Sen. Charles Schumer of New York, chairman of Judiciary's courts subcommittee, but is shared by many other Democrats on the committee, including Leahy.
Democratic treatment of Bush's early nominees is worse in degree but not different in kind than Republican treatment of President Bill Clinton's late nominees. Roots of the malaise run deeper, back to the mugging of Robert Bork and the earlier elimination of Abe Fortas. As a result, two able career public servants are barred from performing the duties to which they have been appointed, and the partisan bitterness deepens.