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Statistical games lock up judicial confirmations

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WASHINGTON — Mark Twain once said there are lies, damned lies — and statistics.

Senators are throwing around such statistics to seek political points about judicial confirmations. And a couple of Utah nominees are pinned in the crossfire.

Sen. Orrin Hatch, R-Utah, ranking Republican on the Senate Judicial Committee, calls it "statistics judo."

The most recent round came as Judiciary Committee Chairman Patrick Leahy, D-Vt., said (without blushing or having his nose grow) that it was generous of the Democratic-controlled Senate to confirm 28 of President Bush's judicial nominees in 2001.

Leahy said that is one more than the 27 confirmed by a Democratic-controlled Senate in Democrat Bill Clinton's first year in office.

Sounds big-hearted, right? Democrats gave Bush one more judge than they gave their own Clinton — even though they think Republicans on the Supreme Court improperly gave Bush the presidency through rulings that stopped the Florida vote recount.

Immediately jumping in, wearing his statistics judo black belt, was Hatch.

He countered Leahy by pointing out that Clinton made just 32 judicial nominations during his first year in office. The Senate confirmed 27, for a confirmation rate of 84 percent.

But Bush nominated 66 people as judges in 2001. Only 28 were confirmed, for a low confirmation rate of 42 percent. That's exactly half the rate the Senate gave to Clinton.

Besides merely blocking Leahy, Hatch tried attacking with some statistics of his own.

For example, Hatch said since Democrats are proud they gave Bush as many judges as Clinton received in his first year — they should continue by also giving Bush as many judges next year as they gave Clinton in his second year: a whopping 100.

Fat chance. Bush's nominees are bogged down for many reasons — leading to the statistics judo. Among casualties are two University of Utah law professors. Paul Cassell is nominated to Federal District Court in Utah. And Michael McConnell is nominated to the 10th Circuit Court of Appeals.

Both are conservatives. Democrats are not anxious to put more true-blue conservatives on the bench.

Also, Democrats — without saying it out loud — appear to be giving Republicans some payback.

They contend that Republicans confirmed too few of Clinton's nominees during his last year in office. They were furious at Republicans for taking the liberal-leaning American Bar Association out of the confirmation process. When Democrats seized back Senate control earlier this year, they restored that power to the ABA. The ABA then soon gave mixed ratings to Cassell.

Democrats also claimed Bush had not consulted closely enough with them about home-state nominees and that Hatch as chairman also gave home-state Democrats too little say. Hence, confirmations proceed at snail's pace — maybe a glacier's pace.

Further complicating chances of McConnell and Cassell — but also maybe giving them hope — is that Democrats may use them as bargaining chips with home-state-sponsor Hatch.

They did that in 2000 when they long delayed the nomination of Ted Stewart to the Utah federal bench. It ended when then-chairman Hatch in exchange allowed votes on some controversial nominees made by Clinton.

The games being playing have left one of every nine seats vacant on the federal bench. It also caused White House spokesman Ari Fleischer to complain, "The president deserves to have his team in place, particularly during a time of war."

Senate Democratic Leader Tom Daschle responded that such comments are "part of an increasingly fierce and highly coordinated campaign by Republicans in Washington to attack Senate Democrats."

Hatch had some good advice for the Senate in a speech, which everyone already knows but ignores.

He said, "The process of advice and consent on the president's judicial nominations is not a game. This is not football or baseball, and the goal here is not a particular set of numbers. These are nominations for very important positions . . . and it is the Senate's constitutional obligation to review them."

But 2002 is an election year. With politicians seeking any advantage for their parties, the games — and use of statistics and other darned lies — will likely continue.

Deseret News Washington correspondent Lee Davidson can be reached by e-mail at lee@desnews.com