Democrats Deny Hearing to Fourth Circuit Nominee Robert Conrad
Patrick Leahy's ridiculous 'anti-Catholic' smear
After Democrats won control of the Senate in the 2006 elections, the White House abandoned the record-long stalled nomination of Terrence Boyle to a Fourth Circuit seat in North Carolina. In July 2007, George W. Bush instead nominated federal district judge Robert J. Conrad Jr. to the seat.
Conrad was a model candidate by the standards that Senate Democrats had espoused. But Democrats used their control of the Senate and of the Judiciary Committee to deny Conrad a hearing over the remaining year-and-a-half of Bush’s presidency.
The Democratic obstruction of Conrad’s nomination illustrates several basic lessons. First, a Senate majority can use simple inaction to defeat a nomination. Second, Senate Democrats were aligned with their most liberal activists. Third, some seats become especially attractive to fight over.
(I draw in this post on a 2008 National Review house editorial that I had a major hand in drafting.)
***
When the Bush White House booted the American Bar Association from its privileged role in evaluating candidates for federal judgeships before they were nominated, Democratic senators Patrick Leahy and Charles Schumer hailed the ABA’s evaluation as the “gold standard by which judicial candidates are judged.” But that “gold standard” didn’t count for much when the ABA judicial-evaluations committee unanimously awarded Conrad its highest rating of Well Qualified.
Nor did it help that Conrad had the strong support of North Carolina’s two Republican senators, Elizabeth Dole and Richard Burr. Or that the Judicial Conference of the United States had declared the vacancy to which he was nominated a “judicial emergency.” Or that Bill Clinton’s Attorney General, Janet Reno, had in 1999 selected Conrad, then a respected federal prosecutor, for the highly sensitive role of chief of the Justice Department’s Campaign Finance Task Force, which investigated Al Gore’s fundraising activities.
What did matter to liberal activists, and thus to leading Senate Democrats, was that Conrad, a devout Catholic, had expressed strong pro-life convictions in articles that he wrote before becoming a judge.
What also mattered was that Republicans—then-Senator Jesse Helms of North Carolina, in particular—had for six-plus years blocked Bill Clinton from filling the very seat to which Conrad was nominated. That seat, in other words, had been vacant ever since Judge James Dickson Phillips Jr. took senior status in 1994. So Democrats weren’t just going to let it fall into conservative hands.
What’s more, there were five vacancies on the 15-member Fourth Circuit. Bush, at the insistence of then-Senator George Allen, had in 2001 made the very liberal Roger Gregory his first federal appellate appointee. A longtime stronghold of judicial conservatives, the court would be vulnerable to a liberal takeover if a Democrat were elected president in 2008.
***
North Carolina’s senators pressed Judiciary Committee chairman Leahy to schedule a hearing on Conrad’s nomination, but to no avail. When Republicans urged action at a committee meeting in April 2008—nearly nine months after his nomination—Leahy had the gall to contend that Conrad had made “anti-Catholic comments” about a nun. In fact, Conrad had two decades earlier criticized the nun for “the near total contempt [she] displayed for the Roman Catholic Church.”
In mid-April, Republican leader Mitch McConnell worked out with Democratic leader Harry Reid a deal that included holding a hearing on Conrad’s nomination. Or so McConnell thought. But Leahy altered the deal by substituting in Conrad’s place Steven Agee, who had been nominated just a month earlier to a Fourth Circuit seat in Virginia. Agee’s nomination had the support of Leahy’s fellow Democrat Jim Webb as well as Republican John Warner, so Leahy was happy to leapfrog Agee past Conrad.
Conrad’s nomination died without a hearing at the end of the Senate session.
***
When Barack Obama became president in 2009, he inherited four vacancies on the Fourth Circuit. After he filled those vacancies, the court had a substantial liberal majority that continues to this day.
In 2021, Robert Conrad published a dual biography of Saint John Fisher and Saint Thomas More, subtitled “Keeping Their Souls While Losing Their Heads.” His book contemplates “their joy in the midst of adversity.”
In 2024, Chief Justice Roberts selected Conrad as the new director of the Administrative Office of the United States Courts.