With just about 10 months left in his term, President George W. Bush is on track to leave office with fewer of his picks on the federal bench than his fellow two-term presidents Bill Clinton and Ronald Reagan.
Since 2001, Bush has had 294 district and appellate judges confirmed, but the prospect of getting many more through a Senate controlled by Democrats before Jan. 20, 2009, are slim.
By comparison, Clinton and Reagan, both of whom faced similar congressional opposition in the twilight of their administrations, each left office with more than 370 of their candidates confirmed, according to Senate statistics. And Bush is running only marginally ahead of Jimmy Carter, who left office after a single term with 262 nominees confirmed.
Bush has 187 judicial and executive nominations pending in the Senate. There are 28 pending judicial nominations -- 18 for federal trial slots and 10 for appellate court seats -- but none have been voted out of the Senate Judiciary Committee.
"At the pace we're going, we will be lucky to get to 10 [appellate confirmations]," says Curt Levey, the executive director of the conservative Committee for Justice. Levey says he expects the Senate to move on no more than four circuit judgeships this year, an extraordinarily low number.
Professors who study the judicial confirmation process say Democratic senators have little incentive to help a Republican president in an election year. They point out that in some instances Bush disregarded recommendations from senators in his own party, leaving him with less support to push nominees through.
Last year, the Senate confirmed only six of Bush's appellate court nominees and approved 34 district judges. During the final two years of their presidencies, Reagan had 17 circuit nominees and 67 district court nominees confirmed; Clinton secured 15 circuit judges and 57 district judge confirmations, according to a Congressional Research Service report.
Emily Lawrimore, a White House spokeswoman, says the administration is disappointed with Senate Majority Leader Harry Reid's tactics but is "working with members of the Senate" to resolve the impasse.
THE BRADBURY OFFER
The current battle reached a crescendo a month ago when Senate Democrats learned that the president planned to stage an event during the Conservative Political Action Conference to highlight their lack of progress on his nominations.
Reid, D-Nev., took to the Senate floor on Feb. 6 and disclosed that negotiations with the White House had broken down in December after Bush signaled he would use his recess appointment powers to confirm Steven Bradbury for the Justice Department's Office of Legal Counsel. Reid said the president rejected an offer to confirm more than 84 nominees in exchange for the withdrawal of Bradbury, whom Democrats oppose for overseeing controversial legal opinions that allowed warrantless spying and harsh interrogation techniques. Still, Reid said he went ahead with confirmations for another 80-plus nonjudicial appointments.
To prevent Bush from making any recess appointments, Reid organized pro forma sessions -- seconds-long gaveling formalities -- during the Christmas break to keep the Senate in session. Reid hasn't scheduled a vote on any of 41 nonjudicial nominees that have cleared committees.
"We're at loggerheads right now," says Jim Manley, Reid's spokesman. Manley says more pro forma sessions remain an option for upcoming holiday breaks, including the Easter recess that runs from March 15 to March 30. "We will not rule them out. Based on what we have seen, they are more than likely."
White House spokeswoman Lawrimore says talks fell apart because Democrats wanted too much control over the process: "We felt like they were asking for the president to forego his presidential authority to recess appoint at a time when it's sometimes very challenging to ensure that nominees get an up or down vote."
Some legal scholars and liberal groups say part of the reason judicial nominees aren't moving is that Bush hasn't pushed people that home state senators wanted on the bench.
In Virginia, Bush last year nominated E. Duncan Getchell Jr., a McGuireWoods partner and chairman of the firm's appellate practice team in Richmond to the 4th U.S. Circuit Court of Appeals -- where five of 15 seats are vacant. But Getchell was not on the list of five candidates recommended by Sens. Jim Webb, D-Va., and John Warner, R-Va. Getchell withdrew his name in January.
Similarly, Maryland's two Democratic senators complained that Bush nominated Maryland's U.S. Attorney Rod Rosenstein to the 4th Circuit without consulting them. "This has less to do with Democrats slowing down the pace," says Nan Aron, president of the liberal advocacy group, Alliance for Justice. "This has all to do with President Bush's failure to engage in meaningful consultation with Democrats."
Lawrimore says home-state senators' opinions have been considered before announcing a nominee. "We value the input of home-state senators and certainly take their opinions into consideration during the selection process," she says.
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, has insisted on home-state senator backing for any nominee. The only circuit court nominee to receive a hearing this year has been Catharina Haynes, a Baker Botts litigation partner and former elected Dallas judge who was nominated last July to the 5th U.S. Circuit Court of Appeals. Haynes has support from Texas' GOP Sens. John Cornyn and Kay Bailey Hutchinson. At least three other circuit nominees have home-state backing.
Sen. Richard Burr, R-N.C., meanwhile, has been pushing senators to move on the nomination of Robert Conrad Jr., chief judge of the U.S. District Court for the Western District of North Carolina. Bush picked Conrad for a seat on the 4th Circuit last July. Burr has been lobbying colleagues on the Judiciary Committee, his office says. In a statement, Burr said: "Having more North Carolinians on the circuit court remains a top priority of mine and I will continue to push for a Senate hearing for Judge Conrad."
The Judiciary Committee this year has already held confirmation hearings for six district judge candidates -- five of whom are scheduled to be voted on by the committee this week.
THE McCAIN FACTOR
The issue is almost certain to emerge in the presidential campaign, according to interest groups. Levey, of the Committee for Justice, says Sen. John McCain, R-Ariz., "has a unique opportunity" to reconnect with a conservative base that follows judicial nominations. "He could really play a role in getting some of these [nominees] confirmed," he says.
McCain in 2005 was one of the so-called "Gang of 14," a group of senators from both parties who helped broker a deal to confirm three appeals court nominees to avoid a vote some called the "nuclear option," which would have banned filibusters on nominees. Observers say the accord cleared the way for the confirmation of Supreme Court nominees John Roberts Jr. and Samuel Alito Jr.
Some conservatives criticized McCain's involvement in the Gang of 14 compromise, and argued that the Senate should have nixed the filibuster. Others praised the deal, saying it maintained the rights of the minority party -- something that would come in handy when Republicans were no longer in power. In a speech to the Conservative Political Action Conference in February, McCain tried to burnish his conservative credentials by pledging to appoint "judges of the character and quality of Justices Roberts and Alito."
Sara Taylor, the former White House political director who departed last year, says judgeships will be "a very motivating issue in the presidential election" for conservatives, and she expects McCain to revisit it.