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Balance of Power

Voters casting ballots today in tight Senate races far from California may well determine the professional fate of a select group of lawyers: President Bush's judicial nominees. But this election holds more curveballs in it than Sandy Koufax's left arm, so Los Angeles Superior Court Judge Carolyn Kuhl and others -- controversial or not -- may have to wait long after the polls close before they can determine their fate.

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Voters casting ballots today in tight Senate races far from California may well determine the professional fate of a select group of lawyers: President Bush’s judicial nominees. But this election holds more curveballs in it than Sandy Koufax’s left arm, so Los Angeles Superior Court Judge Carolyn Kuhl and others — controversial or not — may have to wait long after the polls close. Poll watchers say results in the most convoluted contests won’t be final for days. Two of the too-close-to-call races are special elections, raising the possibility that control of the Senate will switch back and forth in the weeks before regular winners take their seats in January. For Kuhl and others, the best hope is a clear Republican win. Kuhl’s nomination has been blocked for more than a year by Sen. Barbara Boxer, a California Democrat, who has cited “concerns” about Kuhl’s record. “[Sen. Minority Leader Trent] Lott has already said on a couple of occasions that if [Republicans] take over, he will move people very quickly through confirmations,” said University of Nevada, Las Vegas, law professor Carl Tobias, who follows judicial nominations. There’s even talk in Republican circles about revising the so-called blue-slip procedure, under which a nominee’s home state senators are asked to comment on the nomination. Boxer has blocked Kuhl from a hearing by not returning the slip. A potential Bush nominee to the Ninth Circuit U.S. Court of Appeals, Rep. Christopher Cox, R-Newport Beach, withdrew from consideration last year when it became clear that Boxer would oppose him. Republican control of the Senate Judiciary Committee and its rules could clear the way for hearings for Kuhl and a handful of controversial picks for circuits across the county. Indeed, the White House released a plan last week to speed the judicial selection process by setting deadlines for action on nominees. The proposed “gentlepersons’ agreement” didn’t mention elimination of blue slips, but it did say every nominee would be entitled to an up or down vote in committee within 90 days, and after that — no matter what happens in committee — every nominee would get a floor vote. Bush didn’t consult with Patrick Leahy, the Vermont Democrat who chairs the Senate Judiciary Committee, before releasing the plan, and Leahy immediately denounced it as a political ploy. “The timing and handling of this unilateral White House proposal, a week before the elections, and after ignoring all previous invitations to consult with the Senate, cannot help but raise questions about its purpose,” Leahy wrote. Orrin Hatch, the Utah Republican in line to retake the chairmanship of Judiciary should Senate control switch, supports the president’s plan. “It seems to be, with each party and each president since the mid-’80s, that it’s been getting worse and worse. We need a way out of this,” said Makan Delrahim, chief Republican counsel for the Senate Judiciary Committee. As for the proposed time lines, he said they are similar to calls made by Democrats when President Clinton was in the White House and Republicans controlled the Senate. Boxer has remained mum on her reasons for withholding Kuhl’s blue slip, apparently standing on her initial comments that she has “concerns” about Kuhl’s record. Kuhl has been targeted by the powerful People for the American Way and other interest groups for past stances she took as a Justice Department lawyer, including questioning the reasoning of Roe v. Wade and arguing that the Internal Revenue Service could not revoke tax-exempt status for Bob Jones University over its racially discriminatory policies. “If a decision has been made not to return [the blue slip], then they have no views to express, apparently,” Delrahim said. The bottom line? “I think that if the Republicans do take the Senate back, you’ll see a hearing for Judge Kuhl,” Delrahim said. Sam Chapman, Boxer’s chief of staff, declined to respond to predictions that a Republican victory will give Kuhl the hearing she’s been waiting for. “There’s not much point in speculating because we’re going to know in a day or two” which party controls the Senate, Chapman said Monday. The outlook for bench hopefuls is less certain if Republicans don’t win control today. Clearly, if Democrats add to their precarious hold in the Senate, Kuhl and other controversial nominees don’t stand much of a chance. But it’s possible that Republicans could gain control of the Senate for a brief period before the Senate officially reconvenes in January with its new members. In Missouri, Democratic Sen. Jean Carnahan faces a tough fight to hold the seat she was appointed to fill two years ago after her husband won the balloting despite dying in a plane crash three weeks before Election Day. If Republican James Talent defeats Carnahan, he could be seated immediately under Missouri election laws. That would give the GOP 50 seats, with Vice President Dick Cheney casting tie-breaking votes. The big question is whether the window created under that scenario is wide enough for action on judicial nominees. Several pieces of important legislation still need to be ironed out, which could preclude movement on judicial nominees during the lame-duck session. “I don’t think anyone’s going to play games,” said Delrahim, Hatch’s top lawyer. Whatever happens in voting today, the judicial nomination process will likely heat up. Two vacancies have languished in the Ninth Circuit, with speculation that President Bush is awaiting the outcome of the November election before naming names. “I think that’s what’s going on all over the country. He’s only nominated three people [to appellate court vacancies] since the first of the year,” Tobias said. One of those is Tobias’ former colleague at UNLV’s William S. Boyd School of Law, Jay Bybee. He now heads the Department of Justice’s Office of Legal Counsel, which advises Attorney General John Ashcroft and others in the Executive Branch on constitutional matters. Bybee, of Nevada, has the support of his home state senators and doesn’t face organized opposition. The president will have to resubmit his nominees to the Senate when it reconvenes in January. Administration sources told The New York Times last week that Bush would resubmit all his current nominees. He will also throw Texas Supreme Court Justice Priscilla Owen’s hat back in the ring. She was defeated on a party-line vote in committee earlier this year. Even if the GOP takes control, it isn’t clear that Bush’s plan for speeding judgeship approval will come to pass. The proposal that federal judges give advanced notice before retiring is nothing new. Judges are already asked to give at least six months’ notice prior to retiring. What is new is the requirement that nominees get a floor vote within a year. Many of Bush’s picks, particularly to the appellate courts, have waited longer that that. Fifteen of Bush’s 32 circuit picks have waited a year or more without confirmation. Of those, five have had a committee hearing. Two were voted down. The three others — Gibson, Dunn & Crutcher partner Miguel Estrada, South Carolina federal judge Dennis Shedd and law professor Michael McConnell — face organized opposition.

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