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The Imperial President Bequeaths
America An Imperial Judiciary
The State of the Federal Judiciary at the End of the Clinton Era
From: Virginia C. Armstrong, Ph.D., National Court Watch Chairman  


In this second part of Court Watch's two-part Report on the Imperial Judiciary to which Bill Clinton contributed so heavily, we analyze the U. S. Senate's voting records on the Clinton judicial nominees. More data are available on the 106th Congress (1999-2000) than on the 105th Congress (1997-1998). But the existing data still give a clear picture of how the "behind-the-scenes" voting on judges resulted in Clinton's activist/liberal judges gaining the preeminent judicial power that is revealed in "Part I" of this Report.

  1. The Senate's votes on judicial nominations were virtually hidden from public view and, consequently, from public scrutiny and reaction. The forms of Senate voting shielded Senators' votes on judicial nominations from public and official recording. During the 106th Congress, three forms of voting were employed, only the first one revealing a Senator's position: 
    • Roll call votes = 22 (only 30% of all votes taken) 
    • Voice votes = 4 
    • Unanimous consent = 47

    Of 117 nominees, the 106th Congress confirmed 72 nominees, rejected 1, and did not act on 41. Three nominees were withdrawn, and one was recess appointed.

  2. There appears to be substantial consistency in the roll call voting patterns for 1998, 1999, and 2000.  
    • Figure 3 shows that the number of roll call votes on judicial nominations jumped from no roll call votes in 1996 to 12 votes in 1997, when the Judicial Selection Monitoring Project was founded. As small as this number is, it still far exceeds the record of the Democrat-controlled Senate which, during 1991-1994, held only 6 roll call votes during the entire period. And the number of such votes remained relatively stable through the 2000 session.  
    • Figure 4 seems to reveal a greater yearly difference, as it charts the number of "nay" votes cast on Clinton's nominees. There was a precipitate increase between 1996 and 1997, and between 1997 and 1998. The yearly variation is even greater when the 54 votes cast in 1999 against Ronnie White (Clinton's only defeated nominee) are subtracted from that year's total, leaving only 56 "nay" votes scattered among the other 9 roll call votes taken in 1999. On the other hand, the average number of "nay" votes cast per roll call is relatively constant across three years: 13.2 in 1998, 11 in 1999 (including the White vote), and 14 in 2000. 
    • The number of nominees receiving "nay" votes is likewise fairly constant: 7 in 1998, 10 in 1999, and 8 in 2000. It is significant, however, that the nominees receiving the larger numbers of "nay" votes were those strongly activist/liberal nominees targeted for opposition by groups advocating judicial restraint. 
    • Figure 5 seems to indicate that the number of Senators casting at least one "nay" vote per year is a more fluctuating statistic. But this fluctuation is less pronounced if, for 1999, the White vote is considered. Since 25 of the 54 Senators voting against White cast no other "nay" votes in 1999, the number of "nay" votes cast in all other roll call votes was only 34.

  3. As a party, the GOP was extremely supportive of Clinton's judicial nominations. (See Figures 6, 7A, 7B, and 7C.) These tables reveal several interesting features of Senate voting. 
    • The Republican Senators cast 98% of all votes cast against Clinton's nominees. 
    • However, the GOP contingent also cast almost half (48.4%) of the votes supporting Clinton's activist/liberal nominations. 
    • Additionally, in instances where Senators simply failed to vote, the GOP members relinquished far more opportunities to vote than did the Democrats. Of all the "not voting" incidents which occurred, 68% involved GOP Senators not voting; and only 38% involved Democrats failing to vote. 
    • While Senate Democrats have excoriated Republicans for being too "partisan," (the Democrats were apparently paragons of nonpartisan, or bipartisan, temperament), in both 2000 and 1998 every Democrat vote favored a Clinton nominee. And in 1999, the 5 Democrat "nay" votes cast were aimed at Ted Stewart, a favorite of Senate Judiciary Committee Chairman Orrin Hatch (R-UT)--hardly a case of true "bipartisanship."

  4. As individuals, Republican Senators were extremely supportive of Clinton's judicial nominations. Only a few Republicans voted against Clinton's choices to any significant degree. 
    • Figure 8 reveals that during the entire 105th Congress (1997-1998), every Democrat Senator voted 100% of the time for Clinton's nominees. GOP Senators performed very little better, with all 55 Republicans voting for Clinton judges more than 90% of the time. And 12 Republicans joined the Democrats in voting for Clinton's nominees 100% of the time. Thus, during 1997-1998, over half the Senate (57 members) supported Clinton's choices 100% of the time. 
    • Figure 9 in its various segments indicates some improvement in the GOP's opposition to Clinton judges. 
      • Figure 9A, B, and C reveals that during the entire 106th Congress, only 3 Senators (all Republicans) voted against Clinton's nominees more than half the time. They were Enzi of WY, Helms of NC, and Smith of NH.
      • This table also shows that only one other Senator (Inhofe--R of OK), approached a 50% opposition voting rate; he voted against Clinton judges 46% of the time. All other GOP Senators' records were quite one-sided in supporting Clinton choices. 
      • Additionally, no GOP Senator voted against Clinton's activist/liberal candidates 100% of the time, while, as already noted, Democrats voted for true Clinton nominees 100% of the time. 
      • The Senate's top GOP leaders voted strongly for Clinton; Majority leader Trent Lott voted for Clinton's candidates 16 out of 22 votes; Judiciary Committee Chairman Orrin Hatch voted were even more one-sided--1 vote against, and 19 votes for Clinton. 
      • Hatch's one negative vote was cast against Ronnie White; 24 other GOP Senators joined Hatch in casting their only negative vote against this highly objectionable nomination.

The power of the Imperial Judiciary in America today results to a significant degree from the staunch, consistent support given to Bill Clinton's activist/liberal judicial nominees by Republicans and Democrats alike. Whatever may be the reasons for the GOP's cooperation in building the Imperial Judiciary, only a massive effort to curb the courts can reverse this situation. It is that goal to which Court Watch is committed, and education through such efforts as this Report is a critical weapon.

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