Last week, President George W. Bush nominated 24 men and women to the federal judiciary, bringing to 60 the number of judicial nominations now pending before the Senate. As the Senate’s backlog of nominations mounts, the number of vacancies on the federal bench also continues to rise. But, rather than act swiftly to alleviate the logjam, Senate Democrats — under pressure from radical feminist groups — have undertaken a vicious and ideological campaign to stonewall the president’s judicial nominees. In so doing, they have increased the pressure on the already overburdened federal courts and jeopardized the independence of our federal judiciary.
When Mr. Bush took office, there were 82 federal judicial vacancies. During his first year in office, Mr. Bush nominated 66 men and women to Article III judgeships. Yet, when the Senate adjourned in December, it had confirmed only 28 of these nominees and the number of vacancies had increased to 94. As of today, there are 99 vacancies — meaning that the federal courts are currently operating without 12 percent of the allotted judgeships. Why the Senate intransigence? The delay in processing judicial nominees has nothing to do with the qualifications of the candidates and everything to do with interest-group politics. In December, The Washington Times reported that Democratic senators have been coming under intense pressure from the National Organization for Women (NOW), the Ms. Foundation and other left-wing feminist groups to block the confirmation of nominees whose willingness to strike down all legislative restrictions on abortion procedures is not clearly documented and whose support for other “key issues” on the left’s social agenda is in question. On Jan. 22, NOW issued an incendiary press release threatening retribution at the ballot box if senators vote to confirm any of the president’s judicial nominees who do not meet the organization’s ideological litmus test.
On the feminists’ hit list are several highly esteemed female nominees, whom the interest groups view as insufficiently committed to the cause of abortion on demand. Take, for example, the nomination of Judge Carolyn B. Kuhl, who currently sits on the Superior Court of California, to a seat on the vastly overburdened U.S. Court of Appeals for the Ninth Circuit (which includes California). Prior to joining the state court bench in 1995, Judge Kuhl — a graduate of Princeton University and Duke Law School — was a partner at Munger Tolles, one of this nation’s most prestigious law firms. Judge Kuhl also previously served in the Justice Department as deputy solicitor general, where she argued a number of cases before the U.S. Supreme Court.
Despite her obvious qualifications, the radical feminists have targeted Judge Kuhl for defeat. Her crime? As one of the government’s top lawyers, she authored briefs on behalf of the United States arguing that certain restrictions on abortion were constitutionally permissible, and questioning the constitutional underpinnings of Roe vs. Wade. Of course, most lawyers understand that it is unfair to criticize (or, indeed, praise) any nominee based the positions adopted by his or her client (in this case, the U.S. government). But the radical feminists view Judge Kuhl’s prior representation of a client whose views differ from their own as political apostasy.
Another highly qualified woman targeted for defeat by left wing feminists is Justice Deborah L. Cook of the Ohio Supreme Court, whom the president nominated in May to a seat on the U.S. Court of Appeals for the Sixth Circuit (which includes Ohio). Justice Cook has more than 10 years of experience as an appellate judge on the Ohio Supreme Court and Court of Appeals. She was also the first female partner at Akron’s oldest law firm, Roderick Linton, where she practiced law from 1976 to 1991.
Rather than celebrate Justice Cook as a pathbreaker, NOW has chosen to attack her for being a member of the Federalist Society, a primarily conservative and libertarian group whose mission is to foster intellectual debate on the fundamental principles of individual freedom and limited government. Responding to NOW’s McCarthy-like tactics, the Senate has refused to schedule a hearing for Justice Cook, even though the Sixth Circuit, to which she was appointed, is currently operating at half-strength and is desperately in need of additional judges.
Because of this well-organized and well-funded ideological attack on candidates for the federal bench, nominations such as those of Judge Kuhl and Justice Cook have languished without Senate action for more than seven months. The irony, of course, is that the same radical feminists who have long whined about the need to break the “glass ceiling” in order to allow more women to succeed at the very highest levels of their professions are now trying to prevent certain female nominees from even obtaining a hearing before the Senate Judiciary Committee.
Demanding guarantees from judicial nominees that they will vote a certain way on cases that may eventually come before them violates the principle of impartiality that is the cornerstone of an independent judiciary. Moreover, the campaign to derail the Bush judicial nominees does nothing to advance the cause of women’s rights. To the contrary, it reveals as utterly disingenuous and hollow the feminists’ purported goal of achieving “diversity” and gender equity in federal appointments. Worse still, it further entrenches the backlog in the administration of justice, thus increasing the chance that justice will be denied or that the law will not be enforced — a condition which surely cannot benefit women or others seeking protection from our legal system.
Recognizing the threat to our system of justice posed by the well-organized and well-funded ideological attack on the president’s judicial nominees, the Independent Women’s Forum on Jan. 21 delivered to Sen. Thomas Daschle a letter signed by more than 40 prominent women from both sides of the political aisle, urging the Senate to reject political litmus tests as the standard for confirming federal judges.
A fully staffed, balanced and independent judiciary is necessary for the protection of every American’s safety, freedom and civil rights. If Senate Democrats really want to ensure that women — and, indeed, all Americans — have access to justice, they must act with all deliberate speed to conduct hearings and schedule floor votes on all of the president’s judicial nominees.
Nancy Pfotenhauer is president of the Independent Women’s Forum. Jennifer Braceras is the John M. Olin Fellow in Law at Harvard Law School.
This article appeared in The Washington Times.