Federal Bench Becoming Victim of Ideology

Only three of President Bush's 44 nominations to the federal bench have been confirmed by the Senate, leading some to wonder what the majority Democrats are doing to roadblock the administration's efforts to fill a large number of vacancies.

Currently, 108 of the 853 federal judgeships are vacant, with 39 of those considered "judicial emergencies" that must be filled posthaste because of heavy caseloads. And while both Republicans and Democrats in Congress say they want to fill these vacancies as soon as possible, some believe the partisan fighting over the issue is actually worsening.

Sen. Chuck Schumer, D-N.Y., recently suggested during a congressional hearing that nominees could be rejected solely based on their politics.

"If the president sends countless nominees who are of particular ideological cast, Democrats will likely exercise their constitutionally given power to deny confirmation so nominees do not re-orient the direction of the federal judiciary," Schumer said.

His comments have experts concluding the Senate's advise-and-consent role has been taken to the next level.

"Now, it looks as though the Senate is taking yet another step and saying, 'We're just going to oppose nominees for their ideology, come what may. He's too conservative. President Bush likes him. I don't,'" said Paul Rosenzweig, an adjunct law professor at George Washington University.

Rosenzweig said political wrangling over the judicial nominations process has intensified since the courts began taking an increasingly pro-active role.

"The fact (is) that the courts have become a forum for judicial policy making. And as they take a more active role in that, it's natural that people focus on the ideology of the nominees," he said.

Despite the increasing role, conservatives who generally oppose judicial activism say imposing a litmus test on judges smacks of corruption.

"You can't hold these nominees hostage to pledging to deliver particular results. And that's what I consider corruption," said Andy Stevens, a spokesman for People for Common Sense Courts.

Judicial stalling tactics go back several years, and have cut across party lines. The most prominent case came in 1987, when a Democratic Senate torpedoed Robert Bork's nomination to the Supreme Court. Then came Clarence Thomas and the showdown over accusations that he harassed Anita Hill.

Republicans took over the Senate in 1994, and held up many of former President Clinton's nominations. Forty-two nominees remained unconfirmed when Clinton left office.

The rejection of one nominee, controversial judge Ronnie White, by then-senator John Ashcroft, became an issue during the attorney general's own confirmation hearings this year.

Some critics of the Bush administration believe there is good reason to hold up some of his appointments.

"A number of the nominees made by President Bush come straight from the recommendations of the Federalist Society, a very far-right-wing organization that is looking for judges and justices like Scalia and Thomas," said Elliot Mincberg, legal director for the People for the American Way Foundation.

And it could get much worse when a vacancy comes up on the U.S. Supreme Court. For now, senators are not talking about it so much as thinking about it. But with expected Supreme Court resignations coming, it is bound to be more of an issue.