RealClearPolitics
May 24, 2006
By Curt A. Levey
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What do Ken Starr, Jesse Helms, the Defense Department under Donald Rumsfeld, and the mining industry have in common? They are people and institutions liberals love to hate. They are also the current and former employers of the four U.S. Courts of Appeal nominees subject to Democratic obstruction in recent months: Brett Kavanaugh, Terrence Boyle, William Haynes, and William Myers respectively. This connection is no coincidence. Senate Democrats and their allies on the Left have plenty of pent up rage against the likes of Starr, Rumsfeld, and Helms, but little opportunity to inflict pain on them. Judicial nominees, on the other hand, provide easy targets for sublimated anger. The result is a farce that denies an up or down vote to exceptionally qualified nominees, while demeaning the judicial confirmation process and setting a dangerous precedent.
While Democrats are smart enough to couch their opposition to these four nominees in respectable terms - experience, ethics, and the like - there is no doubting its primal source. Consider that, while Senate Democrats have relented and allowed other controversial judicial nominees to be confirmed, these four are still waiting. Each has faced years of Democratic stonewalling, including filibuster threats on the Senate floor and delaying tactics in the Judiciary Committee.
Brett Kavanaugh, nominated to the U.S. Court of Appeals for the D.C. Circuit in 2003, was chosen by Senate Majority Leader Bill Frist as the first beneficiary, among the four, of a renewed Republican push for confirmation. Senate Democrats, as well as the liberal interest groups that have orchestrated much of the fight against the president's judicial nominees, have dreamed up a variety of reasons to oppose Kavanaugh over the last three years. His relative youth - Kavanaugh is 41 - is just one example.
However, their intense dislike of him stems primarily from his employment under Ken Starr in the office investigating the Clinton scandals. Senator Hillary Clinton is believed to be the senator who placed a hold on Kavanaugh's nomination. Never mind that it is Kavanaugh who tried to persuade Starr not to include graphic details about the President's encounter with Monica Lewinsky. The nominee's work for the Bush campaign during the Florida recount and his close relationship to the President are additional sins in the minds of Democrats.
Intent on extracting an extra pound of flesh from Kavanaugh, Senate Democrats demanded that he be put through an unusual second Judiciary Committee hearing earlier this month. In return, they promised to keep an open mind. Yet he did not receive a single Democratic vote when he squeaked through the Committee on May 11. After three years of resistance, the Democrats appear to be ready to allow Kavanaugh's confirmation. But the fate of the other three nominees remains uncertain at best.
Of the three, U.S. District Court Judge Terrence Boyle has been waiting the longest. He was nominated to the U.S. Court of Appeals for the Fourth Circuit more than five years ago, but has yet to receive a vote on the Senate floor, amid threats of a Democratic filibuster. This is not the first time he's waited. In 1991, the first President Bush nominated him to the same court, but Judiciary Chairman Joe Biden (D - DE) refused to schedule a confirmation hearing for him.
Senate Democrats' latest stated reasons for opposing Boyle include an allegedly high reversal rate and newfound charges about conflicts of interest. In fact, a bipartisan investigation by the Senate Judiciary Committee found that Boyle's reversal rate is less than the national average. And Boyle's failure to catch all potential conflicts of interest, virtually inevitable for a long-serving federal judge, involved insignificant financial interests in the outcome of cases - as little as a penny.
The real reason Senate Democrats have been blocking this nominee for five years is their hatred of former Sen. Jesse Helms (R - NC), for whom Boyle briefly worked. Democrats and their confederates have trotted out their standard smear for Republicans from the South, claiming Boyle shares the politically incorrect racial views attributed to Helms. Most specifically, they have charged - in the words of Senate Minority Leader Harry Reid - that Boyle was "part of the cabal, working with Jesse Helms to stop African-Americans from going on the 4th Circuit." Their only evidence: Boyle worked as Helms's legislative assistant for eight months in 1973 - 20 years before the alleged obstruction - and remained a friend of Helms afterwards. Apparently, Boyle's endorsement by African-American defense attorneys who have appeared before him counts for nothing.
The other long-suffering Fourth Circuit nominee, William Haynes, has been languishing in the Senate for almost three years. He has yet to get even a vote in the Judiciary Committee, despite twice being given the American Bar Association's highest rating. Like Boyle and Kavanaugh, he has garnered fierce opposition by choosing an employer that liberals love to hate - in this case, the Department of Defense under Donald Rumsfeld. Haynes has been the Department's general counsel since 2001.
Senate Democrats know that Haynes had little or no decision-making authority regarding the conduct of the War on Terror and the Iraq War. Yet they have done their best to smear him using guilt by association. In particular, Democrats have tried to make Haynes a scapegoat for the Justice Department's so-called terrorist "torture memo," which they believe took an overly narrow view of the prohibitions against torture. Justice has since modified that view in response to the concerns raised. Haynes did rely on the memo's legal advice while serving in the Defense Department - as he was required to - but he was not involved in generating that advice. If Democrats have any genuine apprehension about this nominee's regard for the rights of the accused, they need only look to the pro bono work he has done for indigent criminal defendants.
Rounding out the list of long-suffering nominees is William Myers, whose nomination to the Ninth Circuit has been in limbo in the Senate for more than three years. Like Haynes, Myers's "sin" is being the top attorney at a federal agency whose policies the Democrats and their allies are unhappy with. Myers served as the Department of the Interior's Solicitor from 2001 to 2003.
Left-leaning environmental groups, an important part of the coalition behind obstruction of the president's judicial nominees, are predictably unhappy with a number of decisions made by the Bush Interior Department. Ditto for Native American activists. These interest groups are equally antagonistic towards the mining industry and cattle farmers, for whom Myers worked as a private attorney. While these groups can't do much to change the Administration's environmental policies, they vent their ire by working with Democratic Senators to thwart Myers's confirmation.
The backgrounds of Messrs. Myers, Haynes, Boyle, and Kavanaugh differ, but they all have one thing in common. The Democratic stonewalling that caused their nominations to languish in the Senate for years is motivated by anger at the people and institutions they worked for. It is no coincidence that these four made up the bulk of the five nominees not assured up-or-down votes in last year's "Gang of 14" agreement. The Democratic Senators who signed on to the agreement were simply unwilling to forgive these four for their choice of employers.
It does not have to be this way. Consider Bill Clinton's nominations of Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. Ginsburg had been general counsel of the American Civil Liberties Union, and Breyer once worked for Sen. Ted Kennedy. Republicans love to hate the ACLU and Sen. Kennedy - and they must have been tempted to pay the Democrats back for the way Robert Bork and Clarence Thomas had been treated - but they resisted playing the guilt by association card.
By giving in to pressure from liberal interest groups and the temptation to scapegoat, Democrats are setting a dangerous standard and accelerating the trend towards the unfortunate politicization of the judicial confirmation process. Had this standard been applied in the past, several of the judicial icons of the Left would not be where they are today. And the anticipation of its future application will surely cause many exceptionally qualified potential nominees to conclude that they need not apply. The damage cannot easily be reversed. But an up or down vote on Boyle, Haynes, Myers, and Kavanaugh would be an important step towards restoring the integrity and effectiveness of the confirmation process.
Mr. Levey is general counsel of the Committee for Justice, which promotes constitutionalist judicial nominees to the federal courts.