- The Washington Times - Tuesday, December 1, 2009

Congressional conservatives who picked and lost a fight over a contentious circuit court judge selected by President Obama have set their sights on two lower-court nominees they say could put political pressure on moderate Democrats.

However, with most of the focus on Mr. Obama’s appellate court picks, and with health care reform sucking up most of the oxygen on Capitol Hill, it’s unlikely that Senate Republicans can defeat Judges Louis B. Butler Jr. and Edward M. Chen despite their being flagged by conservative activists for some of their decisions.

Modern judicial confirmation fights constitute a bloody behind-the-scenes partisan battle for ideological control of the courts, and advocates on both sides are ramping up as Mr. Obama nears the end of his first year in office with a host of nominees awaiting Senate action.

Judicial battles traditionally are waged over nominees at the appeals court level, one step below the Supreme Court. However, conservatives accuse Judge Chen — selected by Mr. Obama for a San Francisco District Court judgeship — of being unpatriotic, and they point out that Judge Butler has lost two statewide elections for a spot on Wisconsin’s Supreme Court.

“My instincts are that [Chen] and probably Butler, if they were circuit court nominees, could be stopped,” said Curt Levey, executive director of the conservative Committee for Justice, which describes its mission as “restoring the judiciary to its proper role under the law.”

Mr. Obama has nominated 27 judges thus far. Ten of those, including Supreme Court Justice Sonia Sotomayor, have been confirmed by the Senate. Another nine nominations await committee consideration, while eight await a vote on the Senate floor.

Senate Republicans mounted their first offensive against one of Mr. Obama’s selections when they attempted to filibuster Indiana Judge David F. Hamilton two weeks ago. The maneuver, which fell well short of the necessary 41 votes to block a nominee, drew criticism from Democrats who have accused the minority Republicans of “slow-walking” nominees.

“They overreached in opposing and filibustering Hamilton and now simply look like the boy who cried wolf,” said Nan Aron, president of the Alliance for Justice.

The fight against Judge Hamilton — who, Republicans argued, showed antipathy toward Christianity and anti-abortion legislation in his rulings — put Republican senators in the difficult position of employing a procedural tactic they decried when Democrats wielded it during the George W. Bush presidency.

In the end, Alabama Sen. Jeff Sessions, ranking Republican on the Senate Judiciary Committee, said the judge met the “extraordinary circumstances” threshold for a filibuster agreed to in 2005 by the “Gang of 14” — a bipartisan group of senators formed to curb partisan wrangling over court nominations.

“For Republicans to ignore the changed rules would be to acquiesce in a system where 60 votes are needed to confirm judges nominated by Republicans, but only 51 are required to confirm judges nominated by Democrats,” Mr. Sessions wrote in a Friday Op-Ed column in The Washington Post.

As with Judge Hamilton, Republicans have seized on several controversial statements made by Judge Chen, including a May 2005 speech in which the San Francisco magistrate described “feelings of ambivalence and cynicism when confronted with appeals to patriotism” such as singing “America the Beautiful.” He later suggested that the slow response to Hurricane Katrina in New Orleans was because the majority of the victims were black.

Still, Mr. Levey acknowledged that defeating a lower-level nominee is an uphill battle in the Senate.

“There’s a limited attention span. If you’re focused on circuit court nominees, then it’s much harder to get senators to focus on district court nominees,” he said.

On Tuesday, the Senate Judiciary Committee will hold a hearing on the nomination of Judge O. Rogeriee Thompson, a Rhode Island Superior Court judge whom Mr. Obama has tapped for a seat on the 1st Circuit Court of Appeals.

Her nomination could be a test of Democrats’ fealty to the American Bar Association’s ratings system, which rates all federal court nominees and which Democrats have called “the gold standard” for judging whether someone is qualified for a federal judgeship. An ABA panel rates nominees as either well-qualified, qualified or not qualified.

Judge Thompson received a split rating from the ABA, with a majority of the panel giving her a qualified rating but a minority saying she was not qualified — the only one of Mr. Obama’s 27 nominees to date to receive any “not qualified” votes.


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