July 25, 2008
A week ago, July 17th marked the 365th day that Chief Judge Robert Conrad has been nominated for the 4th Circuit Court of Appeals and has not had a hearing in the Senate. That is one year, without the basic courtesy of Senate Democrats telling him to his face why they do not want him on court. It is also one year in which the 4th Circuit has languished, short-handed, with over a quarter of its seats vacant. A recent hearing in the Senate, convened by Sen. Alexander of Tennessee, brought a distinguished panel of witnesses to show why this is unfair to Judge Conrad and the American people.
Judge Conrad is eminently qualified to sit on the 4th Circuit. In fact, as recently as 2006 the Senate deemed him qualified to head the Federal Western District Court of the North Carolina, and a year before that appointed him to that court without opposition. As the representative of the North Carolina Bar Association told the Senate panel, Conrad is a superb lawyer who deserves to be put on the court, not left in judicial limbo. (He also noted that North Carolina, the most populous state in the 4th Circuit, has only one judge on the court—a misrepresentation that Judge Conrad’s appointment would help to remedy.)
Perhaps the worst part about what is going on is the dishonesty of it all. Sen. Patrick Leahy, Chairman of the Judiciary Committee, has already unfairly smeared Judge Conrad by wantonly mischaracterizing his religious beliefs. Now he has taken refuge behind the so-called “Thurmond Rule” in holding up the nomination of Conrad and others like him. Leahy alleges that Republicans, led by deceased Sen. Strom Thurmond in 1980, purposefully obstructed the nominations of President Carter’s federal judges since it was an election year, so, in the words of Leahy, they might “remain vacant in order to be filled with the nominations of the next president.” The Congressional Research Service debunked that claim. In fact, in September of 1980 the Senate confirmed 12 judicial nominations. The Senate even confirmed Stephen Breyer (now an Associate Justice of the Supreme Court) to the 1st Circuit after Reagan’s election. All in all, of the 14 nominations pending in 1980 12 received hearings, 10 were reported, and 10 were confirmed—71.4%. Compare that to the 35% treatment Bush has received.
Sen. Leahy should be honest about the Thurmond Rule, and follow Sen. Thurmond’s example by holding hearings on 8 more judges—starting with Robert Conrad.