President Bush says the way the Senate reviews his picks for the federal bench has become so partisan and mean-spirited that qualified candidates decline because they don't want to go through a confirmation hearing.
The hearings too often turn into "search and destroy" missions that ruin a person's reputation, Bush said in a speech to hundreds attending the 25th anniversary gala of The Federalist Society, a conservative legal group.
"When the wife of a distinguished jurist proudly attends his hearing and is brought to tears by ugly and unfounded insinuations that her husband is secretly is a bigot, we lose something," Bush said.
Justice Samuel Alito
Bush was referring to the confirmation hearing of Justice Samuel Alito in January 2006 when his wife, Martha-Ann Bomgardner, left in tears after withering questions from Judiciary Committee Democrats.
Offering Alito a chance to defend his integrity, Sen. Lindsey Graham, R-S.C., asked him whether he was a "closet bigot."
"I'm not any kind of bigot," replied Alito, who attended the dinner with his wife.
Bush complained that the Senate has failed to act on many of the nominees who have agreed to serve. He said senators are imposing a new standard in which nominees who have support of the majority of the Senate can be blocked by a minority of obstructionists.
"As a result, some judgeships go unfulfilled for years," Bush said. "This leads to what is called judicial emergencies — vacancies that cause justice to be degraded or delayed. When Americans go to court, they deserve swift and fair answers, and the United States Senate should not stand in their way."
Inside the historic Union Station, crowd gave Bush a standing ovation complete with cheers and hollering. Supreme Court justices and members of the nation's judiciary and legal communities sipped wine and ate beef and veal medallions. Outside, a small group of protesters shouted "War criminal Bush" and "Stop waterboarding." The latter was a reference to a controversial interrogation technique that simulates drowning.
The White House announced that Bush has chosen Rod Rosenstein, the top federal prosecutor in Maryland, to fill a vacancy on the 4th U.S. Circuit Court of Appeals, which has handled some of the country's biggest terrorism cases. He also nominated U.S. District Judge Gene Pratter for the Eastern District of Pennsylvania to a seat on the 3rd U.S. Circuit Court of Appeals.
With the latest nominations, there will be 11 appeals court nominations pending in the Senate.
The Senate Judiciary Committee, led by Democrats, argues that the number of nominees pending is low. At the end of the Clinton administration, there were 26 circuit court vacancies because the Republicans didn't confirm them in hopes that a Republican would take over the Oval Office.
Judiciary Committee Chairman Patrick Leahy, D-Vt., said there are 47 vacancies on both the district and circuit courts. Bush has not nominated anyone for 26 of these 47 spots, according to the committee.
The White House said that historically, the Senate has confirmed an average of 17 circuit court judges in the final two years of the past three administrations. To date, only five circuit court judges have been confirmed.
"The Senate is no longer asking the right question, whether a nominee is someone who will uphold our Constitution and laws," Bush said.
"Instead, nominees are asked to guarantee specific outcomes of cases that might come before the court. If they refuse — as they should — they often find their nomination ends up in limbo instead of on the Senate floor."
Part of the strategy
Bush's swipe at the Democratic-run Senate comes amid mounting White House frustration over the president's stalled nominations to the federal courts. It also is part of a clear pattern by Bush to condemn Congress for not getting its work done, a strategy the White House believes gives it the upper hand.
Sen. Arlen Specter of Pennsylvania, the Judiciary Committee's ranking Republican, said Bush's rhetoric was strong considering there still was hope for getting some nominees confirmed during the final year of Bush's presidency.
"A war of words is not productive," Specter said in a telephone interview.
While he said he understands Bush's frustration, the White House must shoulder some of the blame, Specter said, noting that Bush ignored five recommendations to fill a vacancy on the 4th U.S. Circuit Court of Appeals submitted to him by Virginia Sens. Jim Webb, a Democrat, and John Warner, a Republican.
"It's pretty fundamental that you listen to Republican senators," Specter said.