- The Washington Times - Wednesday, May 9, 2001

President Bush is expected to send his first batch of judicial nominees to the Senate today but will withhold some conservatives because of Democratic threats to block all nominees unless they are granted certain veto powers.
"Theyre trying to make sure that this first batch, there are no gripes about," said Judiciary Committee Chairman Orrin Hatch, Utah Republican.
The stalemate prompted Mr. Bush to delay several expected nominations, including that of conservative Republican Rep. Christopher Cox of California because of opposition from his two Democratic home-state senators.
The expected nominations strike a conspicuous balance, with several minorities and former Clinton administration appointees, plus several choices who have taken stands likely to anger one side or another in some of the most contentious political issues of the day.
For example, Roger L. Gregory, first nominated by President Clinton and supported by Democrats, is expected to be renominated by Mr. Bush as the first black to sit permanently on the 4th U.S. Circuit Court of Appeals.
Judge Gregorys nomination, which Mr. Clinton later made into a recess appointment, was strongly opposed by Sen. Jesse Helms, North Carolina Republican. But the nomination of a former Helms aide to the same circuit court may be an acceptible trade-off. The aide, Terrence Boyle, is now a district court judge in North Carolina.
Democrats repeated yesterday that no nominations will go through until they get their way on the impasse.
Asked if the logjam was discussed at the Democrats weekly policy lunch, Sen. Joseph R. Biden Jr., Delaware Democrat, said "there is no logjam, they are just not going to get any judges."
If Democrats make good on this threat, they would be blocking Judge. Gregory, one of the examples they used in arguing during last years campaigns that Republicans were engaged in race-motivated blocking of qualified judges.
The White House planned to send 14 nominations, but it will deliver only 11 who the administration believes can pass the evenly divided Senate.
Sen. Dianne Feinstein, California Democrat, said a call from the White House yesterday about the withdrawal of Mr. Cox was "a step in the right direction." he could be nominated later, she said.
The Associated Press reported last night the nominees also include Edith Brown Clement, a district judge in New Orleans, to the 5th U.S. Circuit Court of Appeals; Jeffrey Sutton, a former Ohio solicitor general, to the 6th U.S. Circuit Court of Appeals in Cincinnati; Miguel Estrada and John Roberts, the latter a one-time clerk to Chief Justice William H. Rehnquist, to the Court of Appeals for the District of Columbia.
Also included are: Barrington Parker, a district judge in New York, for the 2nd U.S. Circuit Court of Appeals; Dennis Shedd, a district judge in South Carolina, for the 4th U.S. Circuit Court of Appeals; and Deborah L. Cook, an Ohio Supreme Court justice, to the 6th U.S. Circuit Court of Appeals.
The other judges are legal scholar Michael McConnell for the 10th U.S. Circuit Court of Appeals in Denver, and Texas Supreme Court Justice Priscilla Owen for the 5th U.S. Circuit Court of Appeals.
The group includes members with characteristics likely to help them in a nomination battle or at least deflect some of the charges that liberal interest-groups use. Three of the nominees are women, and two besides Judge Gregory are racial minorities. Judge Parker is black and Mr. Estrada is Hispanic.
Judge Parker helped handle the high-profile Texaco race discrimination case and Judge Gregory is a pillar of the black establishment — a partner of former Virginia Gov. L. Douglas Wilder who represented Richmond Public Schools, the Richmond Redevelopment and Housing Authority, General Motors and some of the nations largest insurance companies.
Delayed nominations besides that of Mr. Cox include Los Angeles County Superior Court Judge Carolyn Kuhl for the 9th U.S. Circuit Court of Appeals in San Francisco. Judge Kuhl clerked for Supreme Court Justice Anthony Kennedy before he rose to the Supreme Court.
Peter Keislers expected nomination for the 4th Circuit also will be held because of opposition from his two home-state senators, Barbara Mikulski and Paul Sarbanes, Maryland Democrats.
Democrats remain steadfast in opposing all nominees, controversial or not, until home senators get complete veto power over nominees from their states.
Most of the expected nominations will sit on U.S. Circuit Courts of Appeal. Such courts have multistate jurisdictions and the tradition of home-state deference is not as strong as with district court judges, all of whom only hear cases in a single state.
Democrats issued a four-page memo yesterday outlining their opposition to moving forward with confirmation votes until they get veto power over judges from senators home states.
"Federal judges should be fair, moderate, and mainstream — not ideological from the extreme right or extreme left," the memo said. "Democratic senators are only asking for fairness."
Mr. Hatch said absolute veto power is unconstitutional but if two senators from a nominees home state strongly opposed the candidate, the confirmation would be jeopardized.
And with Democrats threatening to employ a litmus test and veto judges based on ideology, Republicans say they will not allow this "dangerous precedent."
At least one Democrat is threatening to block judges from home if they are pro-life, said Sen. Jeff Sessions, Alabama Republican.
"Thats stunning," Mr. Sessions said. "We dont need to have litmus tests on judges. The qualifications of judges is discipline, and will they enforce the laws passed by Congress."
"The American public is not going to be patient with qualified nominees being blocked by senators carrying water for the radical left," Mr. Sessions said.
But there is grist for some ideological fights in the backgrounds of several of the nominees.
Mr. Sutton is a conservative Columbus, Ohio, lawyer and a member of the Federalist Society. He also clerked for two U.S. Supreme Court justices — former Justice Lewis F. Powell and Justice Antonin Scalia.
Mr. Sutton last month argued against a Massachusetts law restricting cigarette ads, arguing that the law violates First Amendment free-speech guarantees and also successfully argued against applying the Americans With Disabilities Act against states.
Mr. Estrada, a former assistant to the U.S. solicitor general and law partner of Bush recount lawyer Theodore Olson, may anger social conservatives for the anti-death-penalty and pro-choice cases he has taken up.
In 1999, Mr. Estrada lost on a 7-2 vote a bid to have the justices block the execution of Virginia murderer Tommy David Strickler over purported prosecutorial misconduct, including the withholding of evidence favorable to Strickler.
And in 1993, he argued before the Supreme Court on behalf of the application of anti-racketeering laws to pro-life protesters.
He argued the case while in the solicitor-generals office when the Clinton administration sided with the National Organization for Women in saying pro-life demonstrators were engaged in a broad-based conspiracy to engage in illegal activities, and so the Racketeer-Influenced and Corrupt Organizations law applied.
But another of the administrations choices — John Roberts Jr. — argued before the Supreme Court on behalf of pro-life activists.
While arguing before the court in 1992 as principal deputy solicitor general for the federal government, Mr. Roberts helped persuade the justices to reject attempts to use the 1871 Civil Rights Act (sometimes known as the "Ku Klux Klan Act") against pro-life demonstrators.
One of the other choices is a leading conservative legal theorist on church-state issues.
Mr. McConnell, a law professor at the University of Utah, has argued against the use of the First Amendment to penalize religion.
In a 1995 case involving the University of Virginia, Mr. McConnell argued that a public university may not discriminate against a student group for its religious character or message — and helped win the case.
Mr. McConnell, who clerked for the liberal Justice William Brennan, also has straddled both sides of the hot-button issue of homosexuality, arguing both for the right of Boy Scouts to bar homosexuals from being Scout leaders to backing a Salt Lake City high school tried to stop the formation of a Gay/Straight Alliance by barring all non-curricular clubs.
Judge Boyle already has been involved in political tit-for-tat. He was nominated in 1991 by President Bush, but Democrats then in control of the Senate sat on the nomination until Mr. Clinton was president.
He also has demonstrated a skepticism of campaign-finance restrictions, agreeing with a state pro-life group that three parts of a North Carolina reform bill were unconstitutional.
Judge Boyle struck prohibitions of political contributions by corporations, and by lobbyists during legislative sessions. He also rejected the states definition of a political action committee as infringing on the right of issue groups to free speech.
* Researchers Dean Brown and John Sopko contributed to this article, which is based in part on wire-service reports.

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