“The Founding Fathers certainly intended that the Senate advise as to judicial nominations, i.e., consider, debate and vote up or down. They surely did not intend that the Senate, for partisan or factional reasons, would remain silent and simply refuse to give any advice or consider and vote at all, thereby leaving the courts in limbo, understaffed and unable properly to carry out their responsibilities for years.” (Testimony of Sen. Patrick Leahy, May 10, 2000).
Well, for Senator Leahy, it seems that it is not necessary to have a vote up or down when the partisan or factional “reasons” also happen to be your friends. Thus when the usual assortment of activists gave him a call expressing their last minute opposition to Fourth Circuit nominee Dennis Shedd, he was more than happy to cancel Shedd’s scheduled vote, in so doing flouting Senate rules, personal promises, and his previously mentioned lofty ideals.
Of course, this failure to conduct a vote is just the latest in an ever-lengthening chain of abuses. Take for example Professor McConnell, who after languishing for more than a year was finally given a hearing, during which it was made abundantly clear not only that is he eminently qualified, but also that he has support from both the ideological left and the right. Even so, Leahy has not permitted a vote. Or take Miguel Estrada, a judicial nominee deemed to be well qualified by the ABA, who has also been waiting since May of last year. Once again, Leahy permitted a hearing, but no vote.
Given his recent act of bad faith, Leahy should be forced to hold a vote on these nominees before election day. Because Leahy and Schumer have chosen to make this a political process, their colleagues should be made to answer for their choices through the political process. Accordingly, Senators should be made to explain to their constituents why, for example, they would choose to vote against a highly qualified Hispanic nominee like Miguel Estrada when the sole criticism to date is speculation that he might be conservative or that he might become a U.S. Supreme Court Justice one day. To force such a vote will be difficult, requiring a commitment from at least 41 Senators, but to do otherwise is to permit Senator Leahy’s hypocrisy to continue.
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