Earlier this month, after the Senate's rejection of a judicial nominee who happens to be a member of a minority group, President Clinton made a statement that depicted the Senate's action as "strong evidence for those who believe that the Senate treats minority and women judicial nominees unequally."
Missing altogether from the president's account were the facts that the nominee, otherwise a fine man, had authored questionable opinions on death penalty cases and drawn the opposition of his home-state senators, as well as of state and national law enforcement agencies. Senators considered the nominee on his merits and without consideration of race; indeed, many senators did not even know the nominee was a minority. This should confirm the fairness of the Senate's confirmation procedures.
The White House can argue until it is out of breath that this merit-based rejection was an act of bias. But in the end such efforts will have no more success than those of medieval alchemists who sought to transform lead into gold.
The president's mistake reveals its emptiness and duplicity when viewed alongside the administration's proud claim of appointing unmatched numbers of minorities and women to the bench. For example, president Clinton recently said, "I am proud that we have succeeded in appointing more Hispanics to the federal bench than any administration in history." But since our constitutional system requires the Senate's advice and consent for judicial nominees, and since the Senate consented to each of those nominees, President Clinton's self-congratulation should by logic extend to the very Senate that has confirmed his nominees to the bench.
Those arguments that have been crafted to suggest a disparity between the treatment of minorities and non-minorities have the same hollow ring. Because every iota of racial prejudice that exists in this country is pernicious and unacceptable, the Senate has kept all consideration of race out of the judicial confirmation process. The judicial questionnaires kept on file in the Senate do not inquire into a nominee's racial background, and the Senate does not maintain designations of candidates by their race.
I have had the opportunity to look at statistics collected by others, however, and I must say that they prove precisely what I would have guessed -- that there is absolutely fair treatment by the Senate of minority and women candidates.
According to the data maintained by the Department of Justice, at the time of the president's remarks, the Judiciary Committee had in fact reported out minority and women nominees at a slightly faster pace than white male nominees during this Congress. Of these judicial nominees, more than half of the ones reported to the Senate floor have been women or minorities.
As far as consideration on the Senate floor is concerned, even a report issued by the Task Force on Federal Judicial Selection -- an interest group that used the assistance of Democratic staffers on the Judiciary Committee -- concedes that the pace of actual confirmations by the Senate through 1997 and 1998 was the same for minorities and non-minorities. That same report also acknowledges that the Republican-controlled Senate in the 97th, 98th and 99th Congresses moved female judicial nominees at least as fast as male nominees.
These examples of speedy treatment by Republicans of all nominees, regardless of their race or sex, is of course no surprise at all. An example is the Senate's recent confirmation of Charles Wilson, an African American with an outstanding record as a federal magistrate judge and U.S. Attorney, to the 11th Circuit Court of Appeals in Florida. Or, consider the Senate's confirmation of other minority nominees such as Victor Marrero, Carlos Murguia, and Adalberto Jordan -- nominees whose records showed they were qualified and who had the support of home-state senators.
By contrast, when the Democrats last controlled the Senate under a Republican president, the record shows that it took an average of 108 days to confirm a white male district court nominee, but an average of 127 days to confirm an African American, Hispanic or female district court nominee. Yet there was no chorus of criticism directed at Democrats for bias (real or imaginary) in the confirmation process.
There simply is no basis in fact to support the scurrilous claim that anything other than merit is considered by the Senate in assessing a judicial nominee's qualifications to serve as a judge. As we have seen all too often in this administration, charges made by the White House tell us more about its political agenda than the truth. Public esteem for the Senate and the judiciary is too vital to allow these institutions to be debased by inflammatory attacks rooted in base wedge politics.
The writer is a Republican senator from Utah and chairman of the Judiciary Committee.