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Bush again attempts to push court candidates { December 24 2004 } Original Source Link: (May no longer be active)
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December 24, 2004
Bush Tries Again on Court Choices Stalled in Senate
By NEIL A. LEWIS
WASHINGTON, Dec. 23 - President Bush said Thursday that when the new Congress convenes next month he will renominate 12 candidates to the federal appeals courts who were denied confirmation in his first term. In doing so, he signaled his willingness to begin what is expected to be another bitter fight with Senate Democrats over what they assert are his efforts to shift the courts in a markedly more conservative direction.
"The president nominated highly qualified individuals to the federal courts during his first term, but the Senate failed to vote on many nominations," Scott McClellan, the White House press secretary, said in a statement announcing Mr. Bush's intentions to move aggressively on the issue in his second term.
Although the announcement appears at odds with Mr. Bush's post-election remarks that he would reach out to opponents, it is in line with what had been a principal campaign theme for him and Vice President Dick Cheney, namely that Mr. Bush would battle Democratic opposition to his judicial choices.
The White House statement, which also called for the renomination of eight candidates for the federal district courts, quickly produced expressions of dismay from Senate Democrats, who said Mr. Bush was not seeking any compromise with them in hopes of improving relations on the issue of judges.
Senator Charles E. Schumer, a New York Democrat who has been a leader in opposing many of Mr. Bush's judicial nominees, said: "In this opening shot, the White House is making it clear that they are not interested in bipartisanship when it comes to nominating judges. This starts to poison the well when everyone on our side was hoping to make a new start."
But the most notable reaction came from Senator Arlen Specter of Pennsylvania, a Republican who is expected to become the chairman of the Judiciary Committee. Mr. Specter, who was re-elected in November and seems to have survived a challenge from some conservative Republicans who had opposed his ascension to the chairmanship, suggested that he was also troubled by Mr. Bush's announcement.
"It has been my hope that we might be able to approach this whole issue with some cooler perspective," he said in an interview. "I would have preferred to have some time in the 109th Congress to improve the climate to avoid judicial gridlock and future filibusters."
Mr. Specter, who said he had been talking to both Republicans and Democrats in order to improve the chances for compromise, said it might now be "difficult to change the atmosphere with the submission of these names." But he said the president was, in any case, entitled to do as he had done and that as chairman he would "play the cards that are dealt," in trying to get Mr. Bush's nominees confirmed.
The eight candidates for the federal district courts were less controversial than the appeals court nominees, but were also not voted on in the current Congress.
When Mr. Bush sends the 20 names to the new Senate next month, however, there will be at least two factors that will be different from the current situation. Democrats blocked 10 of his appeals court nominees by filibuster. But the Republicans have increased their majority in the Senate from 51 to 55, making it more feasible to acquire the 60 votes needed to end a filibuster, which is the threat of extended debate. In addition, the newly renominated candidates will come before the Senate at a time when all sides are staking out their political stances in anticipation of an early vacancy on the Supreme Court and an ensuing battle over whoever is nominated to fill it.
Among the candidates the president said on Thursday he would renominate is William J. Haynes IV, the Pentagon's general counsel, who has been deeply embroiled in controversy over memorandums he wrote or supervised that secretly authorized harsh treatment, even torture, for detainees held at Guantánamo Bay, Cuba, and in Iraq. Mr. Haynes's nomination to the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va., was suspended when the issue erupted and he was asked by the Judiciary Committee to provide material about his role in the issue and failed to do so.
Other candidates Mr. Bush said would be renominated who had been blocked by Democrats include Priscilla R. Owen of Texas, William H. Pryor Jr. of Alabama and Janice Rogers Brown of California.
Of the 45 appeals court candidates whose nominations went to the Senate floor, the Democrats blocked 10 by filibuster in Mr. Bush's first term, including those three. Others were delayed in committee.
Although the Republicans held a slim majority with 51 votes, they needed Democrats to join them to break the filibuster. But they never succeeded in getting more than three or four. Now, with 55 seats, Republicans are hoping to be able to entice enough moderate and conservative Democrats to reach 60 and foil any filibuster efforts.
Democrats had argued that they were justified in going to such extraordinary lengths as a filibuster because the Republicans had refused a hearing to a large number of President Bill Clinton's judicial choices, effectively keeping the seats vacant for a Republican president to fill.
Of the 12 appeals court candidates to be renominated, a handful had been blocked less for ideological reasons than for political ones. Four nominees from Michigan were blocked over a dispute between the state's two Democratic senators and the White House.
Justice Owen of the Texas Supreme Court was filibustered four times. At the center of the debate were her strong anti-abortion legal views, notably in her largely unsuccessful efforts to make it difficult for teenagers to obtain abortions without parental consent.
In one case, another justice on the court at the time, Alberto R. Gonzales, now the White House counsel, wrote that her reading of the law represented "an unconscionable act of judicial activism."
Mr. Pryor, who was named to the appeals court by Mr. Bush during a Congressional recess, thereby sidestepping the Senate, is a former Alabama attorney general. He was known during his tenure in Alabama as an outspoken opponent of legalized abortion and an advocate of a greater role for religion in government. His work as a judge has been largely unnoticed, but he did provide a critical vote upholding Florida's law against adoption by gay couples.
Justice Brown of the California Supreme Court was opposed for her stark opinion upholding the state's referendum against affirmative action and her vivid speeches criticizing the growth of government.
Some of her colleagues wrote that she had gone too far and used needlessly scathing language to extend the anti-affirmative action proposition's reach.
William G. Myers III, nominated for the Ninth Circuit, was opposed because his critics said he could not be fair on environmental cases, citing his long career as a lobbyist for the ranching and mining industries.
In his statement Thursday, Mr. McClellan said, "The Senate has a constitutional obligation to vote up or down on a president's judicial nominees." That assertion, however, has been at the center of a debate in which Democrats have disputed Republican claims that filibusters may not be used for judicial nominations.
Nan Aron, the president of the Alliance for Justice, a liberal group that monitors judicial nominations, said that Mr. McClellan's statement appeared to be an effort to ease the way for Republicans to undertake what is sometimes called "the nuclear option" - having the presiding officer of the Senate declare filibusters out of order. Democrats say they would have no choice but to challenge that and bring business to a halt.
C. Boyden Gray, the chairman of the Committee for Justice, a group that supports the president's judicial nominees, said Mr. Bush's announcement showed that "the president is determined to stick with his approach." Mr. Gray said that after viewing the election results, "hopefully the Democrats will allow an up or down vote on these nominees."
Mr. Bush had offered the prospect of renomination to all of those who had not been confirmed, officials said. Two of those apparently declined: Carolyn B. Kuhl, nominated to a seat on the Ninth Circuit, based in California, and Claude Allen, nominated to a seat on the Fourth Circuit in Richmond.
In addition, Charles J. Pickering, Mr. Bush's other recess appointment, chose to retire this month rather than be renominated.
Copyright 2004 The New York Times Company
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