Bush Extends Olive Branch to Senate Democrats

But new era of good feelings doesn't last long

On May 9, 2001, in a ceremony in the East Room of the White House, George W. Bush announced his slate of eleven nominees to the federal courts of appeals, eight men and three women with “diverse backgrounds” and “sterling credentials.” They included a fellow by the name of John Roberts.

Facing an evenly divided Senate, Bush called on senators to make a fresh start:

I urge senators of both parties to rise above the bitterness of the past, to provide a fair hearing and a prompt vote to every nominee. That should be the case for no matter who lives in this house, and no matter who controls the senate.

I ask for the return of civility and dignity to the confirmation process. And with this distinguished group of nominees awaiting confirmation, there is no better opportunity than right now.

Bush’s ceremony initially appeared to be a real success. But a senator’s decision two weeks later would thwart Bush’s judicial nominations during his first two years.

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Bush’s May 9 announcement was extraordinary in several respects.

First, Bush was remarkably expeditious in making so many nominations so quickly. Never before or since has a president matched Bush’s achievement.

Bush’s contrast with Bill Clinton is especially stark. To be sure, Clinton and his White House lawyers were occupied in his early months by the need to nominate a Supreme Court justice. But Clinton’s dithering over nearly three months illustrates his White House’s indiscipline. Although there were nearly 20 appellate vacancies when Clinton became president, he didn’t make his first appellate nominations until August, and he made only five during the entirety of 1993.

George W. Bush’s first slate of appellate nominees

Second, Bush had all eleven nominees present in the East Room of the White House for his announcement. By accompanying his announcement with (as the New York Times put it) “the ceremonial fanfare usually reserved for the announcement of Supreme Court nominees,” Bush was demonstrating how important judicial nominations were to him.

Third, Bush extended an olive branch to Senate Democrats, and Senate Democrats appeared to accept the olive branch. Two of Bush’s picks, Roger L. Gregory and Barrington D. Parker Jr., were Democrats whom Clinton had appointed to the bench. Clinton had selected Gregory for a seat on the Fourth Circuit in mid-2000. But after the Republican-controlled Senate declined to confirm his nomination, Clinton, in a controversial move, recess-appointed Gregory to a temporary seat on that court. An appointment by Bush would give Gregory life tenure. As for Parker, Clinton had appointed him in 1994 as a federal district judge in New York.

Another part of Bush’s peace offering is that he declined to nominate three candidates who had been opposed by Democratic senators in their home states. Bush also responded to Democrats’ plea for diversity: six of his eleven nominees were racial or ethnic minorities (both Gregory and Parker are African American) or women.

Senate Democratic leader Tom Daschle praised Bush: “I’m pleased the White House has chosen to work with us on this first group of nominees.” Patrick Leahy, the senior Democrat on the Judiciary Committee, attended the ceremony and thanked Bush for constructively consulting Democrats. The New York Times reported that “leading Democrats in the Senate … seemed satisfied for the moment that their concerns had been treated respectfully by the White House.”

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It is unlikely that this environment of good feelings would have lasted for long. But its end came very quickly fifteen days later when Senator Jim Jeffords of Vermont announced that he was leaving the Republican party to become an independent and that he would caucus with the Democrats.

Jeffords’s defection meant that the Senate was no longer evenly divided: Democrats would have a 51-seat majority and would take over the chairmanships of all of the committees. Of particular significance for judicial confirmations, Patrick Leahy would displace Orrin Hatch as chairman of the Judiciary Committee and would have the power to decide which judicial nominees would have confirmation hearings and which would be quietly stalled by inaction.

The delicate balance that Bush had attempted to strike in his package of eleven appellate nominees would not survive. Senate Democrats would seize the upside by promptly confirming Roger Gregory and Barrington Parker, but they would allow the confirmation of only one other of the eleven (Edith Clement to the Fifth Circuit) in the eighteen months leading up to the 2002 Senate elections. John Roberts and three other nominees would not even receive a confirmation hearing during that period.

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Years later, Senate Democrats would have ample reason to rue that they had declined Bush’s invitation to establish a political norm “to provide a fair hearing and a prompt vote to every nominee.”