|FILLING THE BENCH|
May 9, 2001
Senators and legal experts discuss President Bush's judicial nominations
GWEN IFILL: Now a closer look at these nominees and the potential for confirmation battles ahead from two key members of the Senate Judiciary Committee, Republican Senator Jeff Sessions of Alabama and Senator Patrick Leahy of Vermont, the ranking Democrat. They're joined by two interested outside observers: Clint Bolick, the litigation director of the Institute for Justice, a conservative group, and Marcia Kuntz, the director of the Judicial Selection Project at the Alliance for Justice, a liberal group.
Senator Sessions, would you give me your assessment of today's nominees.
|A diverse group|
SEN. JEFF SESSIONS: I thought it was a great group, a real diverse group. Six of the eleven were either minorities or women. Two were Democrats. I thought the president reached out to the Democrats and said that we're going to work together, we're going to consult, he consulted with them before each of these nominees, and I believe he's moving in the right direction. We've got to be collegial, we've got to reach out to those senators who have to vote on the nominees, but at the same time the President deserves the same deference as President Clinton received when he got 377 out of 378 of his nominees confirmed.
GWEN IFILL: Senator Leahy, do you agree with that?
SEN. PATRICK LEAHY: I suspect, and this is one of the things that President Bush was saying that he would hope that there would not be the kind of holds as has been in the past, and all due respect to my friend, Jeff Sessions, I don't think he wants the Democrats to treat President Bush's nominees in the way a number of President Clinton's were, a number of them were held up and held up and held up in committee, and some for years upon years and they never even had a committee vote.
But having said that, this started off as another rocky procedure because there wasn't going to be any consultation. We have insisted there be consultation and to the president's credit and to his staff's credit on a number there were consultations. In fact, a number of people I understand that they originally planned to have -- they've withheld their names while they have further consultation. I think that's a good start. You know, we're -- Democrats and Republicans are going to vote together on most of these nominations, but what has happened in the past, there have always been some -- the home state senators know best about them -- they say, look, don't try and go for that -- that person is not going to make it -- and invariably they've been right.
GWEN IFILL: Clint Bolick, do you agree with Senator Leahy that this is a good start, or do you agree with what he means by that?
CLINT BOLICK: Well, I'm glad to see that the temperature is going down a little bit. There's been some tremendous histrionics at the Democratic -- many Democratic Senators said in advance that they were laying down the gauntlet, and it seemed like they were putting out a sign that said, no conservatives need apply, not withstanding the fact that the president of course is going to predominantly nominate people who are -- who reflect his conservative philosophy, and the Democratic Senators are under tremendous pressure from left wing special interest groups who really, really want to have a confirmation battle. But I think President Bush nominated perhaps the most outstanding group of judicial nominees ever today, and he did lay out the olive branch by naming two Democrats; these are highly qualified people, a very diverse group. I think they're all going to be confirmed, and they should be.
GWEN IFILL: Marcia Kuntz, your response?
MARCIA KUNTZ: Well, I'm pleased also that the president nominated two Democrats in the group, but I don't think we should lose sight of the fact that many of these nominees are very conservative. We have only begun preliminarily to review their records because we don't want to pass judgment on any particular nominee, but we are concerned that some of these have records that indicate that they are out of step on issues about which there is broad consensus in this country.
GWEN IFILL: For instance?
MARCIA KUNTZ: For instance, the ability of Congress to protect Americans against discrimination, the ability of Congress to protect the environment. We have seen a number of conservative activist decisions recently by the Supreme Court, and if Bush is going to be nominating people in the mold of those activist Justices on the Supreme Court we would have great concerns. The courts of appeal are very powerful institutions and they can perpetuate that regression in the progress that has been made.
GWEN IFILL: Mr. Bolick, are we talking about conservative activism or just conservatism?
CLINT BOLICK: Just conservatism. All of these are mainstream nominees. Seven of them are sitting judges with very established track records. The other four have argued 70 cases before the United States Supreme Court and won a whopping majority of them. They are solidly in the middle of American jurisprudence. They definitely believe -- many of them believe that Congress does have limited powers. None of them would disagree with the notion that Congress can pass environmental standards or civil rights laws; that's really pure rhetoric, but they don't believe that Congress has open-ended authority and anyone who reads the Constitution would agree with them.
|A plea for bipartisanship|
GWEN IFILL: Senator Leahy, you were at the White House today when the president made his plea for bipartisanship, but I guess you can see some of the battle lines already being drawn.
SEN. PATRICK LEAHY: I think -- I actually spoke to the president about that afterward. I think he made it very clear that he was talking about what's happened during the past years when so many people did get held up. As you know, after the Republicans took over, women and minorities took much, much longer to go through the Senate than they ever had before; many did not make it through. And there were a number of -- a number of reasons.
I don't know the gentleman who is speaking because we can't see the set from where we are here in the Senate, but I think it's somewhat of a slur on the Senate to suggest that we're doing the bidding of some kind of pressure groups. I have not talked to anybody about this, other than fellow Senators, saying that we'll protect the Senate role. I'm not asking for any different standards of the blue slip or those things for Democrats than the Republicans required when it was a Democratic president. I don't want a judiciary of the ultra left or the ultra right. I want a judiciary where everybody would come into the accord -- whether Republican, Democrat, white, black, old, young, poor, liberal, conservative, whatever -- they could look at that judge and say I know I'm going to get impartial justice; that's what I want. That's always been my touchstone.
GWEN IFILL: Senator Leahy, just to help you out, the gentleman speaking was Clint Bolick from the Institute for Justice, whom I believe you're familiar with.
SEN. PATRICK LEAHY: Yes. I didn't get the name before. We can't see the --
GWEN IFILL: That's perfectly fine. Senator Sessions, what is your thought about the chances for bipartisanship in confirming these judges?
SEN. JEFF SESSIONS: We have to work toward it. The president said he's reaching out his hand, and I know Pat's acting a bit cautious here, but I know he's got to be pleased with this nominee group; two are Democrats, one had been nominated by President Clinton. I think it is a good first step of high quality nominees. I don't believe there can be found many things wrong with them. Now, let me just mention one thing. We did not hold up -- and I reject the idea that nominees were held up because of their race or sex. Only one nominee that President Clinton sent forward was voted down. He had only 41 pending when he left office. President Bush was left with 53 pending when he left office, former President Bush. His nominees were treated well. I believe these nominees of President Bush will be treated well in the long run. But I have been disturbed and concerned about some of the rhetoric. I think it's been a bit heated.
GWEN IFILL: Now, Marcia Kuntz, one big difference in this year's judicial selection process that nobody can argue about is the absence of the American Bar Association's screening process, which usually in the past at least has been used to help the White House decide who to nominate. Has that made a difference based on what you saw from these 11 today?
MARCIA KUNTZ: Well, it's hard to say. Again, we are just beginning to review these candidates ourselves. The candidates appear to be of high academic credentials and so I -- I am not sure that the American Bar Association would -- would be severely critical of them, but I do think that the fact that they were excluded from the process before nominations suggests that the administration wanted to streamline this process of nominating people and then pushing them through Congress and without regard to this level of review that the ABA was providing, and I think it was helpful, and I think presidents depended on it. And it's disturbing that this administration chose to omit that from the process.
GWEN IFILL: Both Mr. Bolick and Senator Sessions alluded to this notion of left wing rhetoric polluting the process. Do you want to respond to that?
MARCIA KUNTZ: What we're talking about here are issues that -- about which there is broad consensus in this country. We are not talking about the need to nominate liberal judges. We are talking about the need to nominate moderate judges, who are in step with mainstream America on many of these issues. And the key issue here is that no nominee is presumptively entitled to a seat on a federal bench. Nominees bear the burden of proving that they meet the high standards that the Senate should apply in evaluating nominees. So when we're talking about -- when we're talking about standards, we're not talking about adherence to some left wing ideology on issues. We are talking about very basic mainstream values here.
|A judicial emergency?|
GWEN IFILL: Clint Bolick, when President Clinton made his nominations, he said it was a judicial emergency, that he felt it was a need to fill these slots, and generally, you and others disagreed with that. Now, President Bush is making that same argument. Does it just matter whether a judicial emergency is painted conservative or liberal?
CLINT BOLICK: Actually, we did not oppose any nominations during the Clinton years. The Alliance for Justice, one of the few things that we would agree on, in 1999, when there were 70 vacancies, said that there was a judiciary crisis, in their words. There are now 101 judicial vacancies. Thirty-three of them have been declared judicial emergencies. Eight of the candidates today are named to slots that are in that category of judicial emergency. I do think that the Senate has a very important advice and consent role to play here, but to hold these folks who are extremely well qualified on grounds purely of ideology is a dangerous game to play.
GWEN IFILL: If there was an emergency at work here, what -- a month ago or a few weeks ago they were talking about nominating 40 people to fill 40 positions. Today we only saw 11. What happened?
CLINT BOLICK: Gwen, we're going to definitely see more nominations in the near future. The president gives greater deference on district court nominations. Today we just saw appellate court nominations. There have been a number of objections raised by home state Democratic Senators and, as Senator Leahy indicated, the White House is giving deference in continuing negotiations with those Senators. I hope they don't hold things up so that, in fact, we can see judges nominated and confirmed.
MARCIA KUNTZ: Gwen, if I might comment on the issue of judicial emergency --
GWEN IFILL: Just one moment, Senator Leahy. We'll be right with you.
MARCIA KUNTZ: A number of these emergencies were exacerbated by Republican obstructionism in the Senate. And we believe that the Senate Republicans should not now be permitted to benefit from that obstruction by claiming, oh, my goodness, there are these emergencies, and we have to push through these nominees in a hurry. They deserve careful scrutiny and thorough scrutiny.
GWEN IFILL: Senator Leahy.
SEN. PATRICK LEAHY: We will move forward. I'm going to ask the ABA to start their background on these nominations as quickly as possible. Certainly we'll want to have that come back prior to -- as I told the White House -- prior to the time we'd have a vote on them. We'll want to do that. But nobody's talking some kind of a wholesale stall. I suspect by the end of the year we're going to see a lot of these things moving a lot faster than Republicans allowed President Clinton to move, but the bottom line is the Constitution does not say nominate and rubber stamp. It says nominate and then have advice and consent, and we take that very seriously, the advice and consent, because these judges are going to be there long after the President's gone, long after I'm gone, long after all the other Senators are gone. We want to make sure that the American people have the benefit of the Senate weighing them. It will be done. I would hope that the rhetoric would go down, but the rhetoric usually goes down when the Senate rules are followed.
GWEN IFILL: Senator Sessions, is the way the Senate ends up handling these nominations, is it a precursor to what we're going to see in a Supreme Court nomination?
SEN. JEFF SESSIONS: Well, I don't know about that. I think there will be more interest in a Supreme Court nomination; everybody will be watching it. I do want to repeat that there were only 41 judges not confirmed when President Clinton left office that he had nominated people, and that's better than the record that President Bush had when he left office. So I think that the Senate cannot be shown to have been a frustration -- frustrating on the judiciary. Now we have instead of 67 vacancies; we have 101, and are growing, and I think can get to a point where we have a crisis if it's delayed too long.
GWEN IFILL: Senators Session and Leahy and the gentleman and lady joining me here -- thank you both very much.