Cheney Jumps In
The vice president enters the fight over judicial nominations.

December 5, 2001 4:15 p.m.

t a time of increasing tension between the Justice Department and Senate Judiciary Committee chairman Patrick Leahy over the administration's antiterrorist policies, the White House has entered into battle on another front with a letter to the chairman from Vice President Dick Cheney blasting the committee's record on confirming judges.

"As we near the end of the first session of the 107th Congress," Cheney writes in the letter dated December 4, "vacancies on the federal bench are occurring at a faster pace than the confirmations of new judges, and barely one in four of President Bush's nominees has received a hearing and a vote."

"In recent past administrations," Cheney continues, "well over 50 percent of judicial nominees have been confirmed in a new president's first year. In 1989, President George H.W. Bush had 62 percent of his nominees confirmed by the end of his first year. In 1993, President Clinton had 57 percent confirmed. To date, President Bush has only had 28 percent of his nominees confirmed."

Cheney tells Leahy that "the current record with respect to circuit court appointments is even worse." While Bush has nominated 28 candidates to federal appeals courts, Cheney says, just five have been confirmed. "Indeed, 75 percent of the president's circuit nominees are still awaiting a hearing before your committee. This poor record of confirmations is having a negative impact on a number of these vital courts." Cheney mentions two nominees to the District of Columbia circuit by name, Miguel Estrada and John Roberts, calling them "outstanding, widely praised nominations" who have not received a hearing before Leahy's committee.

"President Bush has fulfilled his constitutional responsibility to the federal judiciary," Cheney writes. "He announced his first eleven nominees more than six months ago; eight of them have yet to receive a hearing." Cheney concludes, "I urge your committee to act so the Senate, in the remainder of this session and next year, can likewise fulfill its constitutional responsibility and fill the more than one hundred vacancies on the federal courts. It is time for the Senate to act."

The letter is the product of strategy sessions between Senate aides and the lawyers in the White House counsel's office, both of them frustrated by the slow pace of judicial confirmations. Although the letter calls for immediate action, in reality the administration has no hope for anything happening before January at the earliest. "It's meant to lay down a marker for next year," says one Hill aide. "Next year, you'll see a concerted effort from the Senate and the White House."

As happy as they are to receive high-profile help from the White House, some in the GOP worry that the timing of Cheney's letter is not particularly good. First, Leahy actually held a confirmation hearing on Wednesday, considering the nominations of five candidates for the federal district courts. Second, Leahy is engaged in a ongoing battle with the Justice Department and Attorney General John Ashcroft over military tribunals, detention of terrorist suspects and witnesses, waivers of attorney-client privilege, and other issues in the war on terrorism. Cheney's letter arrived a day before Ashcroft's much-anticipated appearance before the Judiciary Committee, and some in the GOP worry that it might divert attention from the anti-terrorism issue.

Still, Republicans hope the letter will convince Leahy that the White House and Senate GOP mean business. "As soon as we get back [from the year-end holidays]," says the Republican aide, "they better start moving some people or nothing will happen in the Senate. Or that's the plan."