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The most important matter before the U.S. Court of Appeals for the District of Columbia in 2002 may well have been the case of the judges who weren’t there. The influential court, which has 12 authorized judgeships, began the year with eight active members — and ended it with the same eight, four appointed by Democratic presidents and four by Republicans. But make no mistake: The D.C. Circuit’s vacancies helped fuel a year’s worth of jockeying on Capitol Hill over the politics of judicial nominations. And now, with the Republicans in control of the U.S. Senate in the 108th Congress, the political dynamic covering the D.C. Circuit’s vacancies will take yet another shape. Two of President George W. Bush’s long-stalled nominees — Miguel Estrada, a partner in the D.C. office of Gibson, Dunn & Crutcher, and John Roberts Jr., a partner at Hogan & Hartson — are poised for likely confirmation. And administration officials are preparing to send up two more names to fill the long-vacant 11th and 12th slots on the court. The prospect of a D.C. Circuit with six, or even eight, Republican appointees and only four Democrats has many lawyers anticipating some changes in the court’s jurisprudence. The court handles some of the nation’s most important regulatory and administrative law cases, including reviews of key environmental initiatives. John Walke, a lawyer at the Natural Resources Defense Council, says the D.C. Circuit is “the most important court in the United States” for environmental cases that involve challenges to rule makings by the Environmental Protection Agency or the Department of the Interior. A change in the circuit court’s composition “would have an enormous impact,” Walke says, both because of the EPA’s direct involvement in federal regulation and because state environmental programs are governed by the EPA’s regulatory choices. Jody Manier Kris, an appellate specialist who is counsel at Wilmer, Cutler & Pickering, says the vast majority of D.C. Circuit cases “simply involve the straightforward application of law” and would not be affected by a change in the court’s party makeup. However, Kris adds, “When you’re talking about certain types of regulatory cases, there is likely to be some amount of greater deference given [by Bush appointees] to the decisions of the Bush administration. This would be particularly true on issues that are the subject of sharp divisions on partisan grounds such as civil rights and the environment.” David Vladeck, a professor at Georgetown University Law Center, tends to disagree. “I am unwilling to believe that simply because an appointee is a Republican, he will follow a party line. Not everyone behaves in a way that is predictable,” says Vladeck, who has followed the circuit closely since the 1970s. “Will the circuit change radically because of the appointment of two or three more judges?” Vladeck asks. “I think not. This is already a fairly moderate to conservative court.” For the president’s first two nominees, the wait to get on the circuit bench has already lasted 20 months. In May 2001, Roberts was nominated for a seat that has remained vacant since Judge James Buckley took senior status in 1996, and Estrada was chosen for a slot that has remained empty since Judge Patricia Wald retired in 1999. Estrada, who if confirmed would be the first Hispanic to sit on the court, appeared before the Senate Judiciary Committee at a contentious hearing on Sept. 26. That capped a year of political theater that included pro- and anti-Estrada rallies, and soul-searching by Hispanic organizations deciding whether to endorse a candidate seemingly more conservative than most of their memberships. But the nomination of the 41-year-old Honduran native ran aground not on ethnic politics, but on the request of Judiciary Chairman Patrick Leahy (D-Vt.) for internal memorandums written by Estrada in the solicitor general’s office in the 1990s. The White House refused, arguing that the papers were part of an internal deliberative process. With the impasse unresolved, Estrada never got a committee vote. Roberts didn’t even receive a hearing in the committee, whose Democrats were wary of what they saw as a plan by the administration to fill key appeals courts with ideological conservatives. Although both circuit nominees are conservative, neither one has much of a paper trail on abortion, civil rights, or church-state relations. Now, Republican senators say they will move forward with both nominations as early as next month. Since Estrada has had a hearing, he would be first to be voted out of the GOP-controlled committee and onto the Senate floor. Roberts would get a speedy hearing and would be the next to receive a vote. On the floor, moderate-to-conservative Democrats would probably vote with all 51 Republicans to confirm Estrada and Roberts. Democrats mustered 44 votes at the end of the last Congress in a futile attempt to stop the confirmation of Dennis Shedd to the 4th Circuit, and they probably can’t top that number in a floor vote on Estrada or Roberts. Administration sources say that the president is unlikely to nominate anyone for the 11th or 12th seats until Estrada and Roberts have been confirmed, possibly as early as April 2003. The court has not had 11 judges since 1999, and it has not had its full complement of 12 judges for more than a decade. But White House sources say the president intends to fill all judgeships authorized by law. Administration sources say there is no consensus on who those nominees will be, but a political firestorm will probably occur no matter whom is named. Sen. Charles Grassley (R-Iowa), a Judiciary Committee member, and Senior D.C. Circuit Judge Laurence Silberman said in the Clinton era that the court is not busy enough to occupy more than 10 judges. Both men say they will press this argument even in a Republican administration. That, in addition to possible partisan opposition from Judiciary Committee Democrats, could be enough to stall those nominees. At the very least, Senate Democrats could accuse the administration of inconsistency and political opportunism. An administration lawyer acknowledges that this is the case but says that “would be an issue for the Senate, not for the president.”

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