- The Washington Times - Friday, March 26, 2004

Senate Democratic Leader Tom Daschle threatened yesterday to block all of President Bush’s judicial nominees unless Mr. Bush promises to not appoint federal judges while Congress is on recess.

“We will continue to cooperate in the confirmation of federal judges,” said Mr. Daschle, who faces re-election in South Dakota in November, “but only if the White House gives assurance that it will no longer abuse the process and that it will once again respect our Constitution’s essential system of checks and balances.”

Mr. Bush has used his recess appointment powers, outlined in the Constitution and used since George Washington’s administration, to place two of his nominees on federal appeals benches this year without the typically required Senate approval. Both judges had been filibustered by Democrats for at least 10 months.

The threat brought immediate outrage from Sen. John Cornyn, Texas Republican and member of the Senate Judiciary Committee.



“While sitting in my office listening, I was astonished to hear the minority leader talk about the president’s use of recess appointments,” Mr. Cornyn said. “The only reason the president had to use the power that is very clearly conferred upon him in the U.S. Constitution is because of this unprecedented obstruction by the Democratic minority in the Senate.”

Mr. Bush appointed judges Charles W. Pickering of Mississippi to the 5th Circuit U.S. Court of Appeals and William H. Pryor to the 11th Circuit U.S. Court of Appeals. Both judges were among six Bush nominees Democrats filibustered on the Senate floor, preventing them from getting a final up-or-down vote. Each of the blocked nominees appears to have enough support for final confirmation if given a final vote.

One of them, Washington attorney Miguel Estrada, withdrew his name from consideration last fall after being filibustered for eight months.

Committee Chairman Sen. Orrin G. Hatch, Utah Republican, said Democrats should stop playing games and give the nominees simple up-or-down votes.

“It is the unprecedented filibusters by the Democrats that necessitated the recess appointments that the Democrats are now criticizing,” Mr. Hatch said.

Sen. Charles E. Schumer, New York Democrat and a member of the Judiciary Committee, said the use of recess appointments “puts a finger in the eye of the Constitution.”

Democrats, who have helped confirm 173 of Mr. Bush’s nominees, are particularly angry over Mr. Bush’s recess appointment of Judge Pickering, since his nomination was killed in committee in 2002 when Democrats controlled the Senate.

“At no point has a president ever used a recess appointment to install a rejected nominee onto the federal bench,” Mr. Daschle said. “And there are intimations that there will be even more recess appointments in the coming months.”

Judges Pickering and Pryor will serve until next January when they again will face confirmation in the Senate. Mr. Schumer warned that Democrats will not back down.

“Our caucus is strong, united and firm in the belief that we are upholding the Constitution and preventing the president from packing the federal bench unilaterally with ideologues,” he said. “We hope the president has learned that we will not yield. This is an issue of principle, not politics.”

After Mr. Daschle’s comments on the Senate floor yesterday, some on Capitol Hill were wondering if the threat hadn’t already begun to work. Within hours of the threat, the Judiciary Committee issued a press statement saying that confirmation hearings scheduled for next week on an appellate judge and two federal district judges had been postponed.

“My understanding is that hearing was moved for a scheduling conflict,” said committee spokeswoman Margarita Tapia. “It’s completely unrelated.”

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