Date:	November 13, 2002
Memorandum for:	The Senate Republican Caucus
From:	C. Boyden Gray
Re:	Judicial Confirmations in the 108th Congress

In view of last November's election results, I wanted to take a moment to share some thoughts about the judicial confirmation process with you and your Senate Republican colleagues.

In retrospect it has become increasingly clear that the delays in confirming President Bush’s judicial nominees, engineered by Senator Leahy and others, were premised on the allegation that President Bush had no mandate. While many media pundits complained that Bush was elected without a majority vote, most Democrats have no quarrel with the Electoral College and make a much more precise legal point: they allege that the Supreme Court in effect "selected" Bush by halting vote recounts in certain Florida counties. Senator Hillary Clinton and Former DC Circuit Court Judge and White House Counsel Abner Mikva are two liberals who make this point. This was an absurd argument before November 5; it is even more ridiculous today after the election results on Tuesday, including the vote in Florida. After November 5, Senate Judiciary Committee Democrats can no longer use the Florida recount as a pretense to determine the composition of the judicial branch.

Now that we have reclaimed the majority, the good news is that Senators Leahy, Kennedy, Shumer, Edwards, et al., will no longer be able to scuttle the President’s judicial nominees in the relative anonymity of the Judiciary Committee. However, as the President’s circuit court nominees get approval from the Judiciary Committee and move to the full Senate for confirmation votes, the debate also moves into a high stakes political arena. This will give potential Presidential candidates and left-wing interest groups the opportunity to define where the two parties stand on social issues and energize their left-wing base in advance of 2004. The Democrats may mistakenly delight in this opportunity. Nevertheless, I believe our nominees likely will be vilified and attacked as never before.

And, as intense as these fights will be, it is important to remember that they are merely warm-ups to the judicial Superbowl - a vacancy on the Supreme Court. It is possible that certain justices may be more inclined to retire now that Republicans are back in control of the Senate. Indeed, I would not be surprised to see a vacancy on the Supreme Court by the spring of 2003.

This presents an additional challenge because the Senate Republican caucus has a much more diverse range of views on social issues than the Democratic Caucus. Holding the Republican Caucus together will be critically important. We must prepare ourselves for high profile, politically charged battles on judicial nominees that will be noticed by our fellow citizens across the country.

In closing, I want to let you know that the Committee for Justice is marshalling its resources and will be fully engaged in these battles. I appreciate the support given to us by the Senate Republican Caucus this past summer when we launched the Committee, and I hope to meet with you and your staff in the weeks ahead as we work for the speedy confirmation of the President’s judicial nominees. Error processing SSI file