Judicial Vacancies Leave GOP With Empty Feeling

Some Republicans are upset that the White House has nominated only 25 people to fill the 47 vacancies now on the federal judiciary. Not to worry. If history is any guide, President Bush can nominate as many people as he wants, but most of them will not don the black robes anytime soon.

As we head into the administration's final 18 months, it appears that, with the Democrats running the Senate, Bush, who has put 278 district and appeals court judges on the bench, has virtually no chance of besting Bill Clinton's370 appointments to those courts -- about 43 percent of the total 853 judges.

Only an average of 51.5 judges have been confirmed in the last year of recent presidencies -- Jimmy Carter through Clinton -- including an average of nine confirmed for the more important federal appellate courts.

If that average holds, Bush will fall well short of Clinton's total, and he may be hard-pressed to get the 11 he needs to match Clinton's 65 appeals court appointments. (By the way, Clinton reached his total with the Senate in GOP hands for six of his eight years.)

When the Senate left town in December 2000, there were 67 judicial vacancies. Clinton had nominated 41 people for those jobs, but they were stalled. The Senate confirmed only 62 judges, including for the appellate courts, during the final 15 months of Clinton's presidency.

It's hard to predict with certainty what the Democrats will do in the waning Bush months. For example, the Democratic- controlled Senate in 1992, the last year of Bush I's term, confirmed a generous 64 of his nominees.

That was essentially because then-Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) seemed to have this notion that the judiciary should be above crass political calculations. He was confirming Bush I's nominees almost on the eve of the presidential election.

NOTE: Contrary to a 2000 Loop column about this matter, Sen. Patrick J. Leahy (D-Vt.) assured us, shortly after the column, that he sided with Biden's policy. (Some corrections take a while.)

Since then, the bitter fights over judgeships have hardened battle lines. And Leahy, now chairman of the Judiciary Committee, has sharply criticized the administration's nominees and the increased politicization of the process.

Leahy was unavailable for a chat this week, but a committee aide kept citing the Thurmond Rule, which she described as a "decades-old, bipartisan agreement that only consensus nominees" get a floor vote after the middle of next year.

But, she added, the late senator Strom Thurmond (R-S.C.) and Senate GOP leaders refined the rule to block "judicial appointments in the last year of a presidency unless (they are) consensus nominees." That means Majority Leader Harry M. Reid (D-Nev.), Minority Leader Mitch McConnell (R-Ky.), Leahy and Arlen Specter (Pa.), the committee's ranking Republican, all have to approve the nomination.

Hmmm. Sounds as though conservatives should stop giving Bush a hard time about these nominations. He's already close to his likely maximum.