The “nuclear” showdown that is expected to begin unfolding in the Senate today has its origins in closed-door discussions more than three years ago between key Senate Democrats and outside interest groups as they huddled to plot strategies for blocking President Bush’s judicial nominees.
In a Nov. 7, 2001, internal memo to Sen. Richard J. Durbin, who is now the minority whip, an aide described a meeting that the Illinois Democrat had missed between groups opposed to Mr. Bush’s nominees and Sen. Edward M. Kennedy, Massachusetts Democrat and member of the Judiciary Committee.
“Based on input from the groups, I would place the appellate nominees in the categories below,” the staffer wrote, listing 19 nominees as “good,” “bad” or “ugly.”
Four of the 10 nominees who Democrats have since filibustered were deemed either “bad” or “ugly.” None of those deemed “good” by the outside groups was filibustered.
Among those listed as “ugly” was Texas Supreme Court Justice Priscilla Owen, whose nomination will be brought to the floor today by Majority Leader Bill Frist, Tennessee Republican.
The internal Democratic memos, downloaded from Democratic computer servers in the Judiciary Committee by Republican staffers, offer a unique look into the early stages of the filibuster campaign, when Democrats were clearly doubtful that they could succeed in blocking any of the nominees.
In the 14 memos obtained in November 2003 by the Wall Street Journal and The Washington Times, Democratic staffers outlined the concerns held by outside groups about Justice Owen’s “hostile” position toward abortion and her “pro-business” attitude.
In a June 4, 2002, memo to Mr. Kennedy, staffers advised him that Justice Owen would be “our next big fight.”
“We agree that she is the right choice — she has a bad record on labor, personal injury and choice issues, and a broad range of national and local Texas groups are ready to oppose her,” the aides wrote.
Another nominee discussed often in the memos is Miguel Estrada, a Washington lawyer who became the first filibustered nominee and who withdrew his nomination to the U.S. Court of Appeals for the D.C. Circuit after waiting two years for a final vote.
In the 2001 memo to Mr. Durbin, the staffer explained the concerns that the outside groups had about Mr. Estrada.
“They also identified Miguel Estrada (D.C. Circuit) as especially dangerous because he had a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment,” the aide wrote.
The memos also reveal the close relationship between Democrats and the outside groups.
In a June 21, 2002, memo to Democrats Mr. Kennedy, Mr. Durbin, Sen. Charles E. Schumer of New York and Sen. Maria Cantwell of Washington, a staffer urged delaying a hearing for Mr. Estrada to “give the groups time to complete their research and the committee time to collect additional information.”
One nominee who wasn’t filibustered was Judge Timothy Tymkovich, who now sits on the U.S. Court of Appeals for the 10th Circuit. But Democrats opposed moving him until all the groups had given their approval.
“[I]t appears that the groups are willing to let Tymkovich go through (the core of the coalition made that decision last night, but they are checking with the gay rights groups),” staffers wrote Mr. Kennedy in a June 12, 2002, memo.
But even as late at early 2003, Democrats appeared concerned that they would not succeed in mounting a full-scale filibuster against their first target.
In a January 2003 meeting between Democrats on the Judiciary Committee and Democratic leaders in the Senate, Democrats agreed to attempt a filibuster against Mr. Estrada.
“All in attendance agreed to attempt to filibuster the nomination of Miguel Estrada, if they have the votes to defeat cloture,” the judiciary aides wrote. “They also agreed that, if they do not have the votes to defeat cloture, a contested loss would be worse than no contest.”