WASHINGTON – The Senate Judiciary Committee confirmed two of President Bush's Circuit Court nominees Thursday, bringing the Senate closer to confirming 10 Appeals Court nominees in the last two years of this administration.
But that is not likely to appease Republicans who are angry and gradually closing down the business of the Senate in opposition to the slow pace of these particular lifetime appointments.
Senate Minority Leader Mitch McConnell struck a deal with Majority Leader Harry Reid to confirm at least 15 of the nominees by the end of this year, that number equaling the number confirmed in the last two years of the Clinton administration. Numbers were slightly higher for Bush's father, President George H.W. Bush.
Twice this week, McConnell invoked the "two-hour rule" that requires consent of all senators for committees to meet beyond two hours of the full Senate being in session. Two Judiciary Committee hearings were stopped dead in their tracks as a result. Witnesses who'd traveled from as far away as Los Angeles were left unable to testify.
Though confirming Judges Raymond Kethledge unanimously and Judge Helene White, 11-8, for the Sixth Circuit Court of Appeal, Judiciary Committee Chairman Patrick Leahy showed no sign that he would give Republicans what they want.
Instead, Leahy, D-Vt., defiantly warned Republicans that such dilatory tactics would lead to Saturday hearings and also put his colleagues on notice, saying, "Further judges will be considered only if by consent of the two leaders of the Senate and the two leaders of this committee."
In a more ominous sign for the Republicans' goal, Leahy reminded his colleagues of the so-called "Thurmond Rule" — named for late Committee Chairman Strom Thurmond, R-S.C., who controlled the committee in the waning months of the Carter administration and fought against confirming the president's nominees.
The rule gradually evolved over time and now is generally considered by members of both parties, though there have been exceptions. The rule allows the Senate in the hands of the opposing party to that of the president prevents the consideration of lifetime judicial appointments in the last year of a presidency unless the nominees are agreed upon by both the majority and minority leaders, as well as the chairman and ranking member of the Judiciary Committee.
Sen Joe Biden, D-Del., also a former chairman who controlled the committee in the final months of the first Bush's administration, reminded colleagues of the rule, saying, "This is the way it's always been handled. It's totally legitimate. Been this way 200 years."
A number of Republicans noted that other Bush nominees have been languishing in the committee for more than a year, like Peter Keissler for the Fourth Circuit. Democrats countered that Judge White has been pending for 11 years, as she was first nominated in the late 1990s by President Clinton.
But another former chairman chimed in, Sen Orrin Hatch, R-Utah, who said, "White did not receive a hearing, because she lacked support of her home state senator who served on the committee at that time." This is also a requirement in the Senate — that both home state senator approve a judicial appointment before consideration of that nominee occurs.
No signs suggest the current stalemate and partisan bickering will abate. Sen. Jeff Sessions, R-Ala., noted a conversation he had with Reid about confirming 15 nominees, saying, "It appears he would not reaffirm that when I asked him about it twice on floor. Would not confirm that. So I think Republicans are right to confirm the decision has been made not to meet that commitment."