COMMENTARY Courts

Senator Patrick Leahy’s Confirmation Standard: Actions Speak Louder Than Words

Nov 29, 2021 6 min read

COMMENTARY BY

Thomas Jipping @TomJipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Thomas Jipping is a Senior Legal Fellow for the Edwin Meese III Center for Legal and Judicial Studies.

Senator Patrick Leahy speaks during a press availability following the democratic party luncheon at the United States Capitol on November 2, 2021 in Washington, D.C. Pete Marovich / Getty Images

Key Takeaways

One of Leahy's frequent instructions is that confirming judicial nominees “should not be a partisan issue.” The thing is: Senator Leahy is as partisan as they come.

In the end, Leahy opposed more than 40 percent of Trump’s judicial nominees, nearly 15 times his previous pattern.

It’s not news that changing politics leads to changing positions. But Leahy has followed this pattern while, loudly and often, denouncing it.

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Senator Patrick Leahy (D., V.t.), who has announced that he will not seek a ninth term next year, will leave the judicial-confirmation process in much worse shape than he found it. Indeed, as a member of the Senate Judiciary Committee since 1979—and as chairman for a combined ten years—Leahy has led a radical transformation of confirmation-process norms.

Leahy is hardly alone among politicians in demonstrating that actions speak louder than words. In his case, though, that contrast is especially pronounced because of the sheer amount of words he has dedicated to lecturing everyone about how he thinks the judicial-confirmation process ought to function. One of his frequent instructions, for example, is that confirming judicial nominees “should not be a partisan issue” or about “partisan point-scoring” (see, e.g., here and here).

The thing is: Senator Leahy is as partisan as they come. Most senators find, for one reason or another, that they are unable to support at least a few of their own party’s judicial nominees. Most Republicans, for example, voted against President Donald Trump’s nomination of Mark Bennett to the Ninth Circuit; the same obtained with President George W. Bush’s nomination of Helene White to the Sixth Circuit. Most Democrats voted against President Barack Obama’s nominations of Gerald McHugh and Edward Smith to the U.S. District Court in Pennsylvania. Not so, for Senator Leahy. The Senate has confirmed nearly 1,000 judicial nominees of Democratic presidents since he first arrived in the Senate in January 1975, and he supported every single one of them.

In fairness, Leahy opposed fewer than 3 percent of Republican judicial nominees—before Trump took office, that is. In just two years (2017–18), Leahy had cast more votes against Trump nominees than against all previous Republican nominees combined. In the end, he opposed more than 40 percent of Trump’s judicial nominees, nearly 15 times his previous pattern.

>>> Dems’ Confirmation Strategy Ignores Their Previous Complaints About Republicans

This was despite Trump nominees receiving higher American Bar Association ratings than those of previous presidents. Now, the ABA’s rating system certainly has its critics, and several studies—see here, here, here, and here—have revealed that it features systematic bias against Republican nominees. Nevertheless, Leahy has said that the ABA’s process is “the gold standard by which judicial candidates are judged.” Until it isn’t.

Leahy’s view of judicial-nomination filibusters has also changed with the partisan winds. In February 1998, with a Democrat in the White House, Leahy said that it would be “a travesty if we ever start getting into a game of filibustering judges.” A month later, he said: “I have stated over and over again on this floor that I would . . . object and fight against a filibuster on a judge, whether it is somebody I opposed or supported.”

Like other calls for a nonpartisan confirmation process, however, this one would collapse once the next Republican president assumed office. Between 2003 and 2005, Leahy voted 25 times for the “improper” judicial-nomination filibusters that he had once pledged to fight against. And then, after Obama took office and Democrats again controlled the Senate, Leahy went back to condemning “partisan and wrongheaded filibuster[s]” of judicial nominees.

On November 21, 2013, Leahy was the Senate’s presiding officer when Democrats abolished the very nomination filibusters they had used against Republican nominees. Leahy announced that the “three-fifths” vote threshold for ending debate on nominations would henceforth mean “simple majority.” It doesn’t mean that, of course, but the Democrats lacked the votes needed to change what the rule says. So instead they acted in much the same way that they want the Supreme Court to treat the Constitution: changing its substance by interpretation without changing its form.

The final flip-flop came during the Trump administration, when Leahy voted 85 times for the judicial-nomination filibusters that he once condemned, then used, and then abolished. It’s all so confusing.

Leahy is also responsible for distorting the courtesy traditionally extended to senators regarding judicial nominees who would serve in their state. Judiciary Committee chairmen of both parties have long required the “okay” from both home-state senators to move district-court nominees through the process. Their views on nominees to U.S. courts of appeals, which have multi-state circuits, are also relevant but limited to nominees who would serve in their state. Leahy imposed a uniquely partisan distortion on this courtesy.

Shortly after Leahy became Judiciary Committee chairman in June 2001, Senators Carl Levin and Debbie Stabenow, Michigan Democrats, asked him to block “any nominations to the 6th Circuit.” This included nominees not only from their state but also from the other states in that circuit—Ohio, Kentucky, and Tennessee—each of which had two Republican senators. A report from the Congressional Research Service—which Leahy often cited regarding the confirmation process, see here, here, and here—notes that Leahy agreed. No chairman, before or since, has allowed senators from one state to use this “home state” courtesy to block nominees to states they did not represent.

In December 2010, Leahy claimed that in the previous six decades, the Senate had to resort to the formal cloture process only three times to end debate on a district-court nominee. That, he insisted, is how such nominees should be handled. Yet Leahy had no complaint when the Senate had to take this step 173 times in just four years during the Trump administration.

>>> Democrats Should Practice What They Once Preached

On May 10, 2018, Leahy and his fellow Judiciary Committee Democrats endorsed a report that criticized how Republicans handled Trump judicial nominees. Leahy complained, for example, that including more than one appeals-court nominee in a single confirmation hearing “mak[es] it more difficult to vet and question them.” Never mind the fact that every chairman in more than half a century, of both parties and including Leahy himself on multiple occasions, has done so. Indeed, nearly 30 percent of the confirmation hearings this year have included multiple appeals-court nominees. No word yet on why President Joe Biden’s judicial nominees are apparently so much easier to “vet and question” than were Trump’s nominees.

That report measured whether judicial nominees are “controversial” by how senators vote on their confirmation. By Leahy’s measure, Biden nominees are even more controversial than Trump’s, with an average of 40 votes against confirmation versus an average of 31 votes.

Again, it’s not news that changing politics leads to changing positions. But Leahy has followed this pattern while, loudly and often, denouncing it. He’s even railed against his Republicans colleagues’ supposed “disingenuous double standard” in the confirmation process. But make no mistake: Leahy has overseen the “weaponizing” of the judicial-confirmation process, radically changing norms that had existed for more than two centuries. Now that’s a record of achievement.

This piece originally appeared in The National Review