JUDGE NOT
Mike Schattman
Special to the Star-Telegram
I want to congratulate Priscilla Owen for getting a hearing and a vote in the Senate Judiciary Committee, and Sen. Patrick Leahy, D-Vt., for restoring the constitutional process that is the advice-and-consent role of the Senate.
Sen. Orrin Hatch, R-Utah, abandoned that historical process. Under Hatch's regime, not one of even President Bush's 27 judicial nominees got so much as a hearing.
It was not until the Democrats regained control of the Senate last summer and Leahy assumed the chair that hearings and confirmations resumed. As of this writing, the Democratic-led Senate Committee had held hearings on 82 Bush nominees, approving 80 of them -- including 16 women. The full Senate had already confirmed 73.
This is normal -- traditional. It was not that way from 1994 to 2001.
I remember it like it was yesterday, although it was more than five years ago now.
Twenty-three months after I was formally recommended for a federal district judgeship, 18 months after I was formally nominated, Sen. Phil Gramm stabbed me in the back. He pulled my "blue slip," which under the GOP rules in force at the time ended any chance I had of having a hearing on my nomination.
So, unlike Owen, I never had the opportunity to defend myself from any misinterpretation of my record and face a vote. I and my staunch Republican Party supporters were lied to for months: "Your hearing is coming soon."
President Clinton had a curious habit. He did not send judicial nominees to the Senate who were not acceptable to the senators of that state, whatever the party affiliation.
This led to some delays in the nomination process itself. During this time, you are formally investigated and spend huge amounts of time and money gathering all the required records. So the period from the time you are named until you are actually nominated, if you pass muster, is several months. During this time, anyone can tell the FBI or the Senate any little rumor about your past.
In my case, I was a state district judge whose term was due to expire. I agreed with a White House request not to run for re-election, given that Texas elections are partisan and fund raising would be involved.
I had been on the ballot here since 1978. Gramm and I were on the ballot together. During his Democratic days, he was my congressman. Although we now had different political affiliations, I had no reason to doubt his integrity when he said he would support my nomination.
Kay Bailey Hutchison, the other Republican Texas senator, was also consulted and acquiesced. My name went to the Senate in late December 1995.
It was then that I entered the purgatory for Clinton judicial nominees. I have written extensively on this subject, and I can tell you that the confirmation process was not always so.
After President Nixon resigned in disgrace, a Democrat-dominated Senate continued to confirm his nominees.
(Politics is about voting. It is a match -- you win or lose. All votes have outcomes. We have to get over the notion that losers are somehow victims. It is just the natural consequence of voting.)
But some people who evidently think the Constitution is just a piece of paper decided that it was better to stop the process rather than put it to a vote. So the "traditional election-year slowdown" was invented and sold to the press. It was believed like gospel until my wife saw an annual confirmation chart in a judicial publication demonstrating that no such phenomenon existed and never had.
What there was, however, was a quota system. Certain GOP senators and their supporters had banded together to limit the total number of Clinton nominees confirmed in any year. Rolling secret blackballs allowed by the GOP leadership made hearings all but impossible except for those nominees who had senators actually on the Judiciary Committee. Being from Utah, for example, was a slam dunk.
How do I know all this? They published their newsletters on the Internet. They even sent out fund-raising tapes featuring Republican senators seeking contributions for blocking Clinton nominees.
The goal was to be in the quota. And it seemed that I was. I left the state bench on Dec. 31, 1996, the last day of my term, for essentially temporary work as an attorney, because there are ethical rules about what nominees can do.
All I had to do was be patient. There were no scandals in my past, no taxes unpaid, no drug or alcohol use. My life and record had been open to scrutiny for almost two years.
In June, the ax fell. I went home and told my wife that there was no way to sugarcoat it: There would be no hearing, no vote and no judgeship. Gramm had reneged. Surreally, this happened the same day that Hutchison's adviser told me that a hearing was imminent.
Now we entered into a strange world indeed. I talked to the White House, and it was determined that I would become the spokesperson for exposing exactly what was going on in the Republican-controlled Senate.
I remained an embattled nominee in title, although I knew I would never be confirmed. My crusade, with a small group of dedicated volunteers, was to expose the hypocrisy and chicanery to the media so they could help clean up the mess. We also contacted academics and showed them the newsletters, tapes and speeches of those rigging the system.
All we wanted for the nominees is what the Constitution expects: a hearing and a vote. No one is entitled to a favorable outcome.
There are risks inherent in putting your life and your record up for a vote. You may lose. But for those of us stranded in committee who never got due process, we have only envy for Owen and Mississippi Judge Charles Pickering. They got their day in court.
Leahy is a man of great integrity. More than that, he is fearless. He is not afraid of democracy.
Rather than stooping to Hatch's tactics, he has held hearings and votes. That is how our democracy is supposed to work.
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Mike Schattman, a former state district judge, now is a partner at Hill Gilstrap, P.C., in Arlington and a member of the Chartered Institute of Arbitrators in London.
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