- The Washington Times - Thursday, October 30, 2003

Conservatives are furious over a Republican proposal to create two new Michigan-based judicial seats in exchange for getting Sen. Carl Levin, Michigan Democrat, to lift his blockade on four of President Bush’s nominees from that state.

White House officials and Senate Judiciary Committee Chairman Orrin G. Hatch, Utah Republican, are negotiating with Mr. Levin in hopes of breaking the impasse over Mr. Bush’s nominees to the 6th U.S. Court of Appeals. The proposed deal would create a new seat on the appeals court and a new seat on one of Michigan’s lower federal district courts.

“The report that Chairman Hatch would even consider rewarding Sen. Carl Levin’s detestable tactics by handing the Michigan Democrat two new judgeships … is unconscionable,” said Richard Lessner, director of the American Conservative Union.

“This is tantamount to paying blackmail. It’s the result of the Republican failure to take a more aggressive approach to the Democrats’ unprecedented filibustering tactics.”

Particularly galling to many Republicans is that Mr. Levin is demanding that one of the new seats go to Michigan Judge Helene White, who was nominated by President Clinton but never given a hearing by Republicans. Judge White is married to Mr. Levin’s cousin.

Mr. Levin has used a long-standing Senate “blue-slip” tradition to delay action on the four judicial nominees from his state.

Hoping to protect the deal, people on both sides of the negotiations have tried keeping the discussions secret. But earlier this week, The Washington Times reported the deal, which outraged many conservatives who compared the talks to “negotiating with terrorists.”

The proposed arrangement, which would cost taxpayers more than $1.6 million annually, also was defended by Republicans familiar with the talks and other conservatives who pay close attention to the federal judiciary.

“Chairman Hatch deserves tremendous credit for pushing forward in every way possible under extremely difficult circumstances,” said Sean Rushton, executive director of Committee for Justice, a conservative judicial-interest group.

“He’s dealing with an unprincipled minority and a very slim majority that is easily distracted and undisciplined when it comes to resolving the judicial nominations battles.”

Forty-five Democrats currently are filibustering two of President Bush’s judicial nominees on the Senate floor and are blocking about a dozen more in a variety of ways. A third filibustered nominee, Washington lawyer Miguel A. Estrada, withdrew his nomination last month in frustration with the process.

Democrats point out that they have approved 167 of Mr. Bush’s nominees. And although the open filibusters on the Senate floor are nearly unprecedented, other forms of foot-dragging on judicial nominees by both parties has been commonplace for years.

A White House spokeswoman did not return calls yesterday seeking comment on the negotiations between Republicans and Mr. Levin, but an administration official said the White House actively wants the deal to be done even if it doesn’t want its fingerprints all over the talks.

One argument in favor of expanding the 6th Circuit is made by the Federal Judicial Conference, the administrative arm of the federal judiciary.

Judge Dennis Jacobs, a member of the conference, testified before Congress last summer and recommended adding a seat to the Sixth Circuit to handle the caseload that has increased in the past decade. In addition, the four vacancies on the court have left a tremendous backlog of cases.

“The Conference does not recommend [or wish] indefinite growth in the number of judges,” Mr. Jacobs wrote. “However, as long as federal court jurisdiction continues to expand, there must be sufficient numbers of judges to serve litigants and justice.”

Mr. Jacobs made no such request, however, for a new district level court seat in Michigan.

Some Republicans also said the confirmation of four Bush nominees from Michigan would be a real plum for the GOP. Currently, that appellate court has six Republican nominees and six Democratic nominees. The panel decides many crucial cases, such as those dealing with the organized labor.

“These judges are important, and there are four of them,” Mr. Rushton said. “This is a chance to get four judicial nominations confirmed [to the 6th Circuit], which could change the philosophical direction of that circuit. Conservatives should understand that.”

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