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Published: Wednesday, 5/9/2001

Advise and consent

In attempting to change the rules on consideration of judicial nominations, Republicans in the evenly divided U.S. Senate are reaping what they've sown after years of obstructing Bill Clinton's appointees. They shouldn't be surprised that their Democratic colleagues want an equal say in who gets those coveted lifetime jobs on the federal bench.

When a Democrat was in the White House and the GOP had a clear Senate majority, the Republicans could simply refuse to act on Clinton nominees, and they often did, especially when the nominees were women or blacks.

Mr. Clinton bucked a Republican-controlled Senate for six of the eight years he was president. One Clinton choice, Helene White, a Michigan appellate judge who was tapped for the Sixth U.S. Circuit Court of Appeals in 1997, never got a hearing, much less a confirmation vote, before the new Bush administration withdrew her nomination earlier this year, along with 61 others. Her fruitless four-year wait was a record for judicial nominees that ought to be enshrined in the political hall of shame.

The tool of obstruction the past two years was the “blue slip,” which had to be signed by both senators from a nominee's home state before the confirmation process would proceed. It gave Republicans veto power over a nomination in cases where the GOP held at least one of a state's two Senate seats.

This was the device that allowed Sen. Jesse Helms, of North Carolina, to hold up three minority nominees to the previously all-white Fourth U.S. Circuit Court of Appeals, even though they had been cleared by Democratic senators.

Now, with the Senate in a partisan deadlock but with Republicans controlling the committees, the ploy has been reversed. Sen. Orrin Hatch, of Utah, the Judiciary chairman, has given notice that he wants to change the “blue slip” rule. Henceforth, a single senator no longer will be able to hold up a nomination.

Democrats, led by Tom Daschle, of South Dakota, are understandably angry, and they are promising to block votes on President Bush's first batch of court nominations unless the Clinton-era rule is retained. While many Americans will see the Democrats' “we can play the game, too” attitude as just more unfortunate partisanship, it's hard to blame them after the record of the past six years.

At stake is not only the composition of the federal judiciary, but its effectiveness, which has been hurt by the Republicans' stalling. Out of 862 authorized federal judges nationwide, there are 101 vacancies now and 11 more due this year, according to the Administrative Office of the U.S. Courts.

The shortage of personnel has led to declaration of “judicial emergencies” in 33 courts, where filings are overwhelming the remaining judges. That's the situation in the Sixth U.S. Circuit Court of Appeals, which handles cases from Ohio and Michigan.

Democrats can't be expected to just meekly give up on their half of the Senate's constitutional duty to advise and consent on judicial nominations. The equitable solution is to reinstate the “blue slip” rule and get on as quickly as possible with the important business of rebuilding the federal judiciary.



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