Battle Over Judiciary Enters New Phase

WASHINGTON —  With their blockade of one of President Bush’s judicial picks holding firm, Senate Democrats are preparing to escalate the ideological conflict by taking another stand against a controversial appellate court nominee.

But the logjam over other Bush nominees may be breaking: One long-stalled federal court choice is headed for Senate approval next week, and two others are waiting in the wings.

The developments signal a new phase in the long-running partisan battle over the judiciary, nearly two years after Bush announced his first slate of nominees in an attempt to shift the courts toward the right.

To a large extent, the president is succeeding. His victories have been overshadowed by the extended Democratic filibuster against Washington attorney Miguel A. Estrada and the floor fight now building against Texas Supreme Court Justice Priscilla R. Owen, both appellate court nominees.

The imminent confirmation of Ohio lawyer Jeffrey S. Sutton to a federal appellate judgeship is the latest example of Bush’s power to move his conservative picks through the narrowly divided Senate.

And both Democrats and Republicans say that two other much-debated circuit court nominees, Ohio Supreme Court Justice Deborah A. Cook and Washington lawyer John G. Roberts, are expected to clear the Senate soon.

Since Bush took office in January 2001, 118 of his judicial nominees -- more than 14% of all active federal judgeships -- have been confirmed. For the 51 seats that are vacant, the president has put forward 38 nominees.

The president’s strength will be tested further if a Supreme Court seat opens up through a resignation, perhaps as soon as this summer. The Senate has not considered a high court nominee since Justice Stephen G. Breyer’s confirmation in 1994 -- the longest such hiatus.

Choosing Their Battles

Democrats, reluctant to challenge Bush nominees across the board, are waging ideological fights in selected high-profile cases where they believe that they can make a political point and win. Republicans, in the Senate majority, are fighting loudly on those fronts -- but are also quietly counting their gains and laying plans for more.

“We’re working on many tracks here,” said Sen. Jon Kyl (R-Ariz.), a member of the Judiciary Committee. “Each of these [nominees] we’re trying to push on down through the process to get them to completion.”

Liberal interest groups tracking the judicial nominations despair of the trend in Bush’s favor.

“It’s sad that not all of these nominees can be filibustered,” said Kate Michelman, president of NARAL Pro-Choice America, an abortion rights group. “But the reality is they can’t be and they won’t be.”

Last year, when they held the majority in the Senate, Democrats defeated two Bush appellate court nominees in committee -- Owen and U.S. District Judge Charles W. Pickering Sr. of Mississippi. Democrats attacked Owen as a conservative “judicial activist” biased against workers and women’s rights; they chided Pickering for his handling of such racial controversies as a cross-burning case.

Several other nominees languished in committee in 2001 and 2002, although the Senate, under Democratic leadership, did confirm 100 judges nominated by the president.

Bush strenuously defended all his nominees as well-qualified and attacked Democrats as obstructionist. Thanks in part to the president’s campaigning, Republicans retook the Senate in the fall elections, and GOP leaders pledged swift action on stalled nominees.

Winning confirmation of Estrada’s nomination became a top priority. The native of Honduras, nominated in May 2001 to the influential U.S. Circuit Court of Appeals for the District of Columbia, was one of Bush’s first judicial selections. But Republicans have failed four times to muster the 60 votes required under Senate rules to force final action on his nomination. Only 55 senators have voted to shut down the filibuster -- all 51 Republicans and four Democrats.

Democratic leaders, calling Estrada a “stealth” conservative who has dodged important questions, have shown no sign of relenting. Instead, they have challenged Republicans to schedule a vote on Edward Prado, a Texas judge Bush nominated in February to the U.S. 5th Circuit Court of Appeals. Republicans, saying that Estrada has been waiting far longer for consideration, dismiss what they call a Democratic ploy to pander to Latinos.

As the deadlock over Estrada continues, the Owen nomination is emerging as another major battle. Democrats spurned a Republican bid this month to schedule a vote on her confirmation.

Asked how many hours would be acceptable to end debate on the nomination, Sen. Harry Reid of Nevada, the Senate’s second-ranking Democrat, replied that in his view, “there is not a number in the universe that would be sufficient.”

While Democrats say they have not made a final decision on whether to filibuster Owen’s nomination, liberal groups are mobilizing against her in the same way they did to block Estrada. They accuse Owen of undermining abortion rights in her rulings as a state judge. Her supporters say she has been rated unanimously as “well-qualified” by the American Bar Assn.

An Owen filibuster would strain partisan relations further at a time when the Senate could soon face a Supreme Court nomination battle. Before the Estrada blockade began, the last judicial nomination to be rejected by filibuster was President Lyndon B. Johnson’s effort to elevate Supreme Court Justice Abe Fortas to chief justice in 1968.

John Nowacki, an advocate on judicial nominees for the conservative Free Congress Foundation, denounced the Democrats for threatening another filibuster.

“There’s an attempt to change 200 years of precedent, where we’re now requiring 60 votes, instead of a majority, to confirm a nominee,” he said. “Either make the case or don’t. Give them an up-or-down vote.”

Boxer Has Objection

Tensions are also simmering over the nomination of Carolyn B. Kuhl, a Superior Court judge in Los Angeles, to the U.S. 9th Circuit Court of Appeals. Republicans are moving her nomination through committee despite the objection of Sen. Barbara Boxer (D-Calif.), who has said Kuhl is “anti-choice” and “anti-civil rights.”

In years past, individual senators have often wielded effective veto power over nominees from their home states. But Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah), seeking to move the president’s nominees swiftly, said this year that he would not give home-state senators such deference.

That shift drew an outcry from leading Democrats, who say Hatch, who also headed the committee from 1995 to early 2001, allowed individual Republican senators to kill many of President Clinton’s nominations.

In addition, Sen. Dianne Feinstein (D-Calif.) is raising objections to the nomination of Arkansas lawyer J. Leon Holmes for a district court seat. Feinstein, a Judiciary Committee member, drew attention to statements Holmes made years ago. In one example Democrats cite, he belittled the issue of whether to allow rape victims to seek abortions, calling the issue a “red herring” because he believed that “conceptions from rape occur with the same frequency as snow in Miami.” Holmes, who has since apologized, is supported by Arkansas’ two Democratic senators, Blanche Lambert Lincoln and Mark Pryor.

Feinstein said she deplored the deepening partisan rift over the judiciary.

“The message has been sent to the White House that there is deep concern about judges coming from the far right, not representative of Main Street America,” Feinstein said.

Sutton, Cook and Roberts, who are soon to be considered by the Senate, appear to have some Democratic support, although they are opposed by an array of groups. Advocates for the disabled complain that Sutton has opposed their interests. Other critics say that Cook’s rulings have favored corporations over workers and that Roberts has a questionable civil rights record.

But Feinstein acknowledged they will likely be confirmed. “The votes are there,” she said.

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State of the nominations

In the partisan battle over the nation’s judiciary, the Bush administration has encountered resistance from Democrats over some of his picks for judgeships. Here are some of his nominees:

* Jeffrey S. Sutton, Ohio lawyer, has been nominated for a federal appellate judgeship. His confirmation appears imminent.

* Texas Supreme Court Justice Priscilla R. Owen has been nominated for appellate court. Democrats call her a conservative “judicial activist” biased against workers and women’s rights and are preparing for a major battle.

* Ohio Supreme Court Justice Deborah A. Cook has been nominated for circuit court. Her confirmation is expected to clear the Senate soon.

* Carolyn B. Kuhl, a Superior Court judge in Los Angeles, has been nominated for the U.S. 9th Circuit Court of Appeals. Republicans are moving her nomination through committee despite the objection of Sen. Barbara Boxer (D-Calif.).

Los Angeles Times