If you had to design the ideal candidate for an appellate judgeship, you might imagine a lawyer who wins praise from legal luminaries of both political parties as one of the nation's very best appellate advocates. Someone who has argued dozens of cases before the Supreme Court, who has a stellar track record in both private practice and government service, and who won the American Bar Association's highest rating. Someone who has represented clients on both the conservative side and the liberal side of ideologically charged cases, and who has encountered no plausible criticism of his fitness to serve.
You might, in short, imagine John G. Roberts Jr. The 47-year-old Washington lawyer was in the first batch of 11 judicial nominees announced by President Bush a year ago, on May 9, 2001. The former deputy solicitor general in the first Bush administration would fill one of the four current vacancies on the U.S. Court of Appeals for the District of Columbia Circuit, often described as the nation's second most powerful court. His many admirers include Walter Dellinger and Seth Waxman, two distinguished Democrats who both served as solicitor general under President Clinton. The only public objection to Roberts has been speculation by abortion-rights activists that he may oppose their agenda, based mainly on his co-authorship of a 1990 Bush administration brief that noted in passing the administration's previously expressed view—not necessarily shared by Roberts—that Roe v. Wade should be overturned.
So why has Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., let Roberts's nomination languish for so long without a hearing, or even a commitment to hold a hearing? Why is Roberts at risk of meeting the same fate that befell him in 1992, when Senate Democrats buried his previous nomination to sit on the D.C. Circuit? Why have an unprecedented eight of this president's first 11 appellate nominees languished for more than a year without Senate hearings, at a time when 16 percent of the 179 seats on the 13 appeals courts are vacant?
Most important, how much longer will it be before the nation's best potential judges shun nomination out of reluctance to put themselves, their careers, and their families through the Senate wringer for jobs that pay less than a third of what they can make practicing law?
Leahy and his Democratic colleagues blame Senate Republicans for taking the downward spiral of partisanship, which has polluted the judicial selection process for 15 years, to a new low during President Clinton's second term. This is true. Leahy also claims that he is repairing the damage and has moved nominees at a pace that compares favorably with his recent Republican predecessors. This is debatable—and the debate could go on for hundreds of pages of raw numbers, percentages, statistical analyses, blue slips, secret holds, recriminations, and counter-recriminations, reaching back at least to the 1987 Battle of Bork, if not to the big bang.
But Leahy has no convincing explanation for why, during the two-year honeymoon period traditionally afforded new presidents, George W. Bush has faced unprecedented delays in trying to get his first dozen or so appellate nominees through the Senate. And although Senate Republicans inexcusably stalled many Clinton nominees—two of them for more than four years each—no nominee in memory who is as superbly qualified as Roberts has been held up for so many months during this honeymoon period.
This is not to absolve the president of responsibility for what he is hyperbolically calling the judicial "vacancy crisis," in a publicity offensive stressing the lapse of a year since his first judicial nominations. Bush, who used to say he would bring a new spirit of civility and bipartisanship to Washington, has no intention of compromising "on the kind of people he wants to put on the bench," asserts a senior administration official. And some of Bush's actions undercut his assertions that his top priorities are to pick people who will eschew judicial activism and to quickly fill the relatively high number of vacancies on the federal district and appeals courts. (The combined total of 88 vacancies at this writing comes to more than 10 percent of the 844 total seats.)
In fact, one of last May's appellate nominees, Justice Priscilla R. Owen of the Texas Supreme Court, was accused two years ago of "an unconscionable act of judicial activism" by none other than then-Justice Alberto R. Gonzales, now Bush's White House counsel. That would be conservative judicial activism: Gonzales was criticizing as a distortion of the Texas Legislature's intent an Owen dissent that took a narrow view of minors' rights under Texas law to obtain abortions without telling their parents. In addition, Bush seems more intent on filling vacancies with conservatives than on filling them fast, which he could do by compromising on nominees with Senate Democrats.
But Bush is right to complain that, after more than a year, the Senate has stalled eight of his initial 11 nominees to the powerful appeals courts, which have the last word in more than 99 percent of their cases and which were stepping stones for seven of the current nine Supreme Court justices. By comparison, all of the initial 11 appellate nominees of Presidents Reagan, George H.W. Bush, and Clinton had been confirmed within an average of (respectively) 39, 88, and 115 days after their nominations. By that admittedly selective yardstick, Leahy and other Senate Democrats have put on a stall unmatched in recent memory.
In fairness, this can be seen as a logical sequel to the obstructionist tactics used by the Republican-controlled Senate to block many qualified Clinton nominees. The effect (and purpose) was that Bush inherited vacancies that Clinton nominees would have filled but for Republican obstructionism. Democrats are understandably reluctant to help Bush fill those same seats with conservatives. Indeed, some say that their only problem with confirming Roberts is that Republicans had denied the seat he would fill to two well-qualified Clinton nominees.
Beyond that, liberals argue plausibly (if inconsistently with the prevailing liberal line when Clinton was president) that the courts and the law have become so politicized that senators should exercise ideological vetoes of appellate nominees whose views they dislike. Senate confirmation of all of Bush's nominees by the end of the year would leave 10 of the 13 circuits with Republican-appointed majorities. Liberals are ever mindful that five Republican-appointed justices awarded Bush Florida's electoral votes, and thus the presidency, on bitterly disputed grounds after he had lost the national popular vote; they stress that Bush has no mandate to swing the courts dramatically to the right. They are desperate to stop his more-conservative nominees. Bush seems determined to keep pushing for them.
The resulting stalemate is damaging the judiciary, which needs a steady flow of new judges to offset attrition and to stay on top of its work. More ominously, the standoff threatens the stake that we all have in the quality of our judges, which will be degraded if the best potential nominees become too disgusted with the confirmation process to endure it. This should motivate all concerned to compromise on moderate nominees who are notable not for their ideologies but for their excellence.
But it won't. Not with Democrats and Republicans alike playing to their most ardent supporters, who care far more about the judicial wars than do most centrist voters. The stalemate seems likely to continue at least until Republicans take control of the Senate or a Democrat wins the presidency.
Meanwhile, poor John Roberts finds himself in line behind Miguel Estrada, Bush's more-publicized D.C. Circuit nominee. This may at first seem odd: While the 40-year-old Estrada is well qualified and has a compelling rags-to-legal-stardom life story, he is younger and less experienced than Roberts. Democrats also suspect Estrada of being a far more ideological conservative, and fear that confirming him could propel the Honduran immigrant toward a future Supreme Court nomination, which would be hard to oppose for fear of offending Hispanic voters. So why has Leahy promised Estrada a hearing while leaving Roberts in limbo? Apparently to quiet the Republicans who have been pandering to those same Hispanic voters by clamoring about Senate Democrats stalling Estrada.
All very complicated. But this much is clear: John Roberts seems a good bet to be the kind of judge we should all want to have—all of us, that is, who are looking less for congenial ideologues than for professionals committed to impartial application of the law. If the Senate buries Roberts—again—it would be an outrage. The ultimate causes would include past Republican outrages. But the immediate villain would be easy to identify: Patrick J. Leahy.