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March 10, 2008

JUDICIAL NOMINATIONS PROCESS DEBATED AGAIN
GOP Senators Criticize Democrats For Stalling on Bush Bench Nominations

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - It's no coincidence that the judicial nominations process has again become a hot political issue: 2008 is a presidential election year.

Four years ago, Republicans used fiery rhetoric accusing Democrats of blocking qualified conservative judicial nominees with some success as they retained the White House and Congress.

In 2006, then-Senate Majority Leader Bill Frist, R-Tenn., decided against making judicial nominations a centerpiece of the congressional election that year. Some conservatives think he paid the price when Democrats took control of both chambers.

Now Republican senators are critiquing Democrats for failing to proceed on President Bush's nominations. The Democratic Senate has confirmed just six circuit court and 35 district court nominees since January 2007.

By comparison, a Republican Senate confirmed 15 circuit court and 57 district court nominees during the last two years of Democratic President Clinton's second term.

A number of circuit and district court nominees opposed by liberal groups are awaiting confirmation, including former Republican congressman James E. Rogan, nominated for a district court seat in the Central District of California.

There are no 9th U.S. Circuit Court of Appeals nominees pending, although there is one vacancy.

In response to the Republican attacks, Sen. Patrick Leahy, D-Vt., the chairman of the judiciary committee, maintains that the Bush administration is to blame by not nominating consensus nominees. Last week, he also accused Republicans of deliberately holding up the process by not turning up to judiciary committee meetings. The committee needs to have 10 members present to vote on nominees.

"Despite the partisan posturing by the president and Senate Republicans, I have continued to move forward and sought to make progress but, I must admit, my patience is wearing thin," Leahy said.

The question now is to what extent the system will cease to function this year as the political battle continues.

Sarah Binder, an expert on judicial nominations at Washington-based think tank the Brookings Institution, points out that a familiar story line is playing out.

Judicial confirmation rates nearly always slow down in the final year of an administration, especially when opposing parties control the White House and Senate.

As far back as 1959, the Democratic Senate was reluctant to confirm some of President Eisenhower's nominees during his last year in office, Binder said.

"The biggest trend here is that the process grinds to a halt," she added.

Activists and experts on both sides agree that Democrats will likely obstruct as much as they can without it becoming damaging for them politically.

The aim is to keep as many positions open, especially appellate court seats, in the hope that a Democratic president will be able to fill them.

"They are short-termers," said Roger Pilon, vice-president for legal affairs at the Cato Institute, a conservative think tank. "They are only looking to the immediate future and counting on a Democrat winning the White House."

Curt Levey, executive director of conservative group the Committee for Justice, believes that the more Republicans complain about the confirmation slowdown, the more likely Democrats are to back down.

"It's largely up to the Republicans," he said. "Democrats will obstruct without having to pay a heavy price."

If Republicans are successful in ratcheting up the pressure, Leahy and other senior Democrats could make a deal with Republicans to let a batch of nominees through, Levey added.

It would mirror a deal Senate Majority Leader Harry Reid, D-Nev., made with Republicans to confirm some executive branch nominees, including new Deputy Attorney General Mark Filip.

Rogan, who Sen. Barbara Boxer, D-Calif., opposes in part because of the leading role he played in the Clinton impeachment proceedings, could be part of such a deal, Levey suggested.

"He is not someone groups on the left will be angry about if he gets through," he said.

But the judiciary committee is only likely to move ahead on his nomination if Boxer changes her mind, according to Leahy spokeswoman Erica Chabot. The nominees that liberal activists are most opposed to include Peter Keisler, nominated to a seat on the D.C. Circuit Court of Appeals. He was a founding member of the conservative legal group the Federalist Society.

Another is Catharina Haynes, a former state judge from Texas who President Bush has nominated for the 5th U.S. Circuit Court of Appeals.

Liberal groups, like Alliance For Justice, say Haynes does not have sufficient experience to serve on an appellate court and point to her political activities as a Republican in Texas.

Nan Aron, Alliance For Justice's president, said the reason why the nominations are stalled is simply because the Bush administration has not done enough to consult with home state senators.

It's a long-standing tradition in the Senate that senators can effectively veto nominees for their home state if they don't approve of them.

"Essentially, what's happening is that Republicans are going all out to tee up the issue for the election," Aron added.

Long-term, it's hard to envision a time when judicial nominations will not be part of the political process, according to the Cato Institute's Pilon.

"I don't see a good way out of this unless there are enough people in Congress of good will," he said.

Maverick Republican Arlen Specter of Pennsylvania, while backing Bush's nominations, has pronounced himself so sick of the partisan bickering that he's introduced a resolution that would change the way nominations are handled in an effort - he claims - to take politics out of the process.

He wants senators to agree to a schedule in which all nominees get a vote in the full Senate within 90 days of the nomination.

But experts aren't expecting Specter to make much progress.

"He is making a stab at something," said Pilon. "But it will probably not get through because the whole business has become so politicized."