- The Washington Times - Sunday, November 24, 2002

Republicans, having recaptured control of the Senate next year, are vowing to confirm more of President Bush's judicial nominees many of whom had been blocked by the Democrats.
"Republicans won the election and we're going to get judges confirmed," said Arizona Republican Sen. Jon Kyl, noting that nominees will move "fairly but quickly."
Republicans had complained that circuit court nominees were treated unfairly and languished in the Senate Judiciary Committee without floor votes while the Democrats held control of the chamber.
"Now this logjam will be broken," said Sen. George F. Allen, Virginia Republican.
But some Senate Democrats, including Sen. Christopher J. Dodd of Connecticut, worry the Republican majority will now simply try to ram their judicial nominations through the Senate.
At least one liberal group is urging Senate Democrats and moderate Republicans to filibuster conservative judicial nominees on the Senate floor if necessary.
People for the American Way President Ralph Neas said Mr. Bush will probably "want the Senate to be his rubber stamp" for judges. But Mr. Neas said if the president does not start nominating more moderate judges, "Democrats and moderate Republicans must oppose those nominations, and they must be willing to use all the parliamentary options at their disposal, including, when necessary, the filibuster."
Judicial nominees have rarely been subjected to a filibuster, which is when senators speak at length on the Senate floor to prevent a measure from receiving a vote. To break a filibuster in the Senate, 60 votes are necessary.
"As far as I know there's never been a filibuster of a judge," Mr. Kyl said. "Somebody told me actually once there was, but it was a long time ago and it is just one of those things that you don't do in the Senate."
Mr. Neas said a filibuster of a judicial nominee is "certainly not unprecedented." He pointed to the successful 1968 filibuster of Supreme Court Justice Abe Fortas to be the high court's chief justice and a number of attempted filibusters against lower court nominees. Mr. Neas said what is unprecedented is that, by the end of 2004, all circuit courts could be controlled by conservative Republican nominees, which could be "devastating" to abortion rights, the environment and other issues.
Paul Rosenzweig, senior legal research fellow at the Heritage Foundation, said Democrats will be unable to filibuster every judicial nominee and will likely choose one target. But he said opponents will have to make a case beyond just objecting to the nominee's ideology in order to convince conservative Democrats mostly from the South to oppose the nominee on the Senate floor and provide the 41 votes needed to sustain a filibuster.
"Southern Democrats, moderate Democrats, that's the battleground for the filibuster," Mr. Rosenzweig said, mentioning Democratic Sens. Zell Miller of Georgia and Ben Nelson of Nebraska, among others.
When the 108th Congress convenes in January, Republicans will have 51 seats in the Senate and the Democrats will control 47 seats, with one independent. Louisiana will hold a runoff election on Dec. 7 to decide which party will control the remaining U.S. Senate seat.
Mr. Miller and Mr. Nelson were among seven Democrats who voted with Republicans in favor of the contentious nomination of District Judge Dennis Shedd to the 4th Circuit Court of Appeals on Nov 19. The nomination was approved 55-44, with many Democrats and liberal interest groups arguing that Judge Shedd has a poor record on civil rights issues.
At the close of the 107th Congress, the Senate had confirmed 100 of the president's district and circuit court nominees out of 130. Mr. Bush nominated 32 circuit court judges and the Senate confirmed 17. He nominated 98 district court judges and the Senate confirmed 83.
The 30 judicial nominees who did not make it out of the Senate will be renominated next year, a Senate Republican aide said. Among those that did not make it are several circuit court nominees first nominated on May 9, 2001, that never emerged from the Judiciary Committee: Terrence W. Boyle of North Carolina (4th Circuit Court of Appeals), Deborah L. Cook of Ohio (6th Circuit Court of Appeals), Jeffrey S. Sutton of Ohio (6th Circuit Court of Appeals), John G. Roberts Jr. of Maryland (D.C. Circuit Court of Appeals), Texas Supreme Court Judge Priscilla Owen (5th Circuit Court of Appeals), and Miguel Estrada (D.C. Circuit Court of Appeals).
The Democrat-controlled committee actually voted down two nominees Judge Owen and District Judge Charles W. Pickering of Mississippi (5th Circuit Court of Appeals). But Ron Bonjean, spokesman for incoming Majority Leader Trent Lott, Mississippi Republican, said both will be renominated next year and will move "as soon as possible."
Mr. Allen said he would like to see "quick action" on Mr. Estrada's nomination considered by many on Capitol Hill as a possible choice by Mr. Bush to be the first Hispanic appointed to the Supreme Court. But Mr. Neas noted Mr. Estrada is one of the nominees his organization has problems with.
Mr. Allen said Democrats used the Senate Judiciary Committee to block judicial nominees so other Democrats would not have to publicly oppose them on the Senate floor. He said that will now change.
"It's not as if we're going to ram them through," Mr. Allen said of judicial nominees. "But if senators have an objection, they can make that objection on the floor, they can vote for or against and explain it, rather than having this lack of accountability."
The outgoing chairman of the Senate Judiciary Committee Sen. Patrick J. Leahy of Vermont said Republicans distorted his record on moving judicial nominations for "political reasons."
"I really made an effort to move judges far faster than the Republicans did, and I did," Mr. Leahy said. "One hundred of them in 17 months or so."
But Republicans point out that while Mr. Leahy's record on district court nominees was solid, his record on moving Mr. Bush's circuit court nominees was worse than that of previous presidents. Out of the president's 32 circuit court nominees, 17 were confirmed by the Democrat-controlled Senate about 50 percent. In comparison, 19 of President Clinton's 22 circuit court nominees were confirmed in his first two years, 22 of the elder President Bush's 23 nominees were confirmed in his first two years, and 19 of President Reagan's 20 nominees were confirmed in his first two years.
Both sides of the debate agree, however, that any filibuster or fight over a circuit court nominee will only be a precursor to the big fight over the next Supreme Court nomination, which some expect to happen by summer 2003.


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