ADVICE AND DISSENT.(political battles over federal judicial confirmations)

Ever since the Republicans took control of the Senate in January, Orrin Hatch, the new chairman of the Judiciary Committee, has sought to use his party's one-vote advantage on the nineteen-member panel to speed President Bush's judicial nominations toward confirmation. On April 10th, Hatch called for a vote on a nominee for a district-court judgeship in Arkansas. A quorum of ten is needed to call a vote, but, with all the demands on senators' schedules, it's difficult to keep that many together for long. The Utah Republican tried to seize the moment as soon as the required complement of his colleagues had wandered into the hearing room in the Dirksen Building. "The clerk will call the roll on J. Leon Holmes,"Hatch said, but then he noticed Dianne Feinstein, the California Democrat, seeking to be recognized. Hatch, who is known for his courtesy to colleagues, halted the vote and allowed the Senator to speak. He had walked into an ambush.

Senate Democrats have displayed an uncharacteristic combativeness toward President Bush's nominations to the federal bench. They have even launched filibusters to prevent votes on two appeals-court nominees, Priscilla Owen and Miguel Estrada. The hearing on Leon Holmes showed that the Democrats were willing to fight on lower-profile nominees, too. Feinstein said, "Let me begin, Mr. Chairman, by saying that I have never voted against a district judge, and, in reading this record and listening to the comments that this man has made, I do not see how anyone can divine from these comments that he has either the temperament or wisdom to be a judge."In most respects, Holmes was typical of Bush's choices for the federal bench--white, middle-aged (fifty-two years old), and very conservative. He had been a leader in the right-to-life movement in Arkansas, and had written and spoken out frequently against abortion, often in Catholic publications.

Feinstein went on, "In 1980, he wrote a letter to the editor stating that abortion should not be available to rape victims because conceptions from rape occur with the same frequency as snow in Miami."In one article, Holmes had said, "The wife is to subordinate herself to her husband."In another, he wrote, "The pro-abortionists counsel us to respond to these problems by abandoning what little morality our society still recognizes. This was attempted by one highly sophisticated, historically Christian nation in our century, Nazi Germany."Charles Schumer, the New York Democrat, went next: "We checked the almanac. It snowed in Miami once in the last hundred years. Thirty-two thousand women became pregnant last year because of rape."Schumer recounted more of Holmes's record, saying, finally, "This guy is so far off the deep end that can't we call a halt to this at some point?”

Plainly startled, Hatch responded, "I have to admit I am concerned about some of those comments,"but then he noted that in Arkansas some Democrats as well as Republicans had endorsed Holmes's nomination. Still, the attack by Feinstein and Schumer unnerved Arlen Specter, a pro-choice Republican on the Judiciary Committee. "I had been advised by staff that the five nominees”--scheduled for votes that day--"were all noncontroversial,"Specter said. In light of what he had heard about Holmes, however, Specter said that the committee should delay the vote to study his record. Hatch suggested instead that the committee vote to send the nomination to the Senate floor with no recommendation--a neutral finding that would at least keep Holmes's hopes for confirmation alive. But, after two more Democrats--Patrick Leahy, of Vermont, and Richard Durbin, of Illinois--added their own condemnations, the chairman had to admit defeat. There would be no vote that day, and Holmes's future as a nominee was in jeopardy.

Even more than Ronald Reagan, George W. Bush campaigned for the Presidency promising an ideological transformation of the federal judiciary, which includes six hundred and sixty-five district judges, a hundred and seventy-nine appellate judges, and nine Supreme Court Justices, all with lifetime appointments. Bush has cited Antonin Scalia and Clarence Thomas as the Supreme Court Justices he most admired. Last year, he told an audience, "We've got to get good, conservative judges appointed to the bench and approved by the United States Senate."That statement has been born out by his nominations, especially to the circuit courts of appeals. So far, Bush has nominated two hundred federal judges; more than half of them have been confirmed, as will most of the rest. But the Democrats, even with their diminished status in ...