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Charles Pickering Sr. once again became a lightning rod for criticism the minute he was renominated for the U.S. Court of Appeals for the 5th Circuit last week. But several of the other 30 judges President George W. Bush named on Jan. 7 — all of whom had been nominated during the 107th Congress but were not confirmed by the Senate — can also expect to run into some interference on Capitol Hill. Administration and Hill staffers say they expect 6th Circuit choices Jeffrey Sutton and Deborah Cook to get hearings from the Judiciary Committee — recently returned to Republican control — early in the session and possibly this month. Liberal groups are preparing to oppose Cook, a justice on the Ohio Supreme Court, zeroing in on her record on employment issues, including cases involving whistleblowers, workers’ compensation, and job discrimination. They say that like 5th Circuit nominee Priscilla Owen of Texas (who like Pickering was defeated in a committee vote last year and renominated last week), Cook is a very conservative member of a conservative state supreme court. Sutton, a partner in the Columbus, Ohio, office of Jones, Day, Reavis & Pogue, has drawn fire from liberal activists because he has contended in court cases that state governments should be exempt on constitutional grounds from federal laws protecting the disabled. Sutton has said positions he argued as an advocate will not dictate his actions as a judge. No confirmation hearings can be scheduled, of course, until the Senate is formally reorganized under Republican control, a step that has not yet been taken. But Senate and administration sources also say that Gibson, Dunn & Crutcher partner Miguel Estrada, one of the two pending nominees for the D.C. Circuit, will probably be among the first prospective judges to get a committee vote. Estrada had a hearing late last year, and so will not have to face a second grilling at the hands of Democrats. The other D.C. Circuit pick, Hogan & Hartson partner John Roberts Jr., has not yet had a hearing. Another nominee who generated some controversy last year has been demoted, in a sense. Bush tapped U.S. Magistrate Judge William Steele of Alabama for a seat on the Atlanta-based 11th Circuit last year. But when the president sent his letter to the Senate last week, Steele was nominated for a U.S. district judgeship. Steele has drawn flak from civil rights groups for his ruling in a 2001 case in which African-American workers at a paper mill alleged that they were subjected to a racially hostile environment, including the frequent use of the word “nigger.” Steele dismissed the case on the grounds that the harassment was not pervasive enough to constitute a violation. Was Steele’s demotion from appeals court to district court nominee a bone quietly tossed in the direction of liberal advocates? An administration official says the answer is no. “It wasn’t meant to reflect negatively on [Steele],” says this official. “It’s strictly driven by an affirmative desire.” It appears that this “affirmative desire” is to try to fill the 11th Circuit vacancy with someone who will be even more controversial than Steele — Alabama Attorney General Bill Pryor, an outspoken conservative and Federalist Society member. Pryor’s candidacy is being pressed by Sen. Jeff Sessions (R-Ala.), an influential member of the Judiciary Committee. “It is no secret that President Bush believes Bill Pryor is a superb lawyer and attorney general,” says Sessions spokesman Michael Brumas. “Senator Sessions shares that view and believes Bill Pryor would be a magnificent circuit judge.” There is no word yet on when to expect Pryor’s nomination, but liberal groups are already researching the record of the 40-year-old conservative who is an outspoken opponent of abortion. “I would be very troubled by this nomination,” says Betsy Cavendish, legal director of NARAL Pro-Choice America. “He appears to be part of a long-term focused plan to ensconce anti-abortion judges in the lower courts and eventually in the Supreme Court.” NEW NAMES In addition to the 14 circuit court choices who were renominated, the administration also has the opportunity to fill 14 other vacancies on the federal appeals courts across the country. Judge-pickers in the White House and in the Department of Justice are actively gearing up to find candidates for those slots, administration sources say, and a few names are beginning to surface as possible nominees. In addition to Bill Pryor, the likely pick for the 11th Circuit, two California state judges, both of whom are Hispanic, are said to be on tap for the two remaining 9th Circuit appointments. They are San Francisco Superior Court Judge Carlos Bea, 68, an unsuccessful Bush I nominee, and Consuelo Callahan, 52, a midlevel appeals court judge. Neither is expected to be as controversial as two pending 9th Circuit nominees, Los Angeles Superior Court Judge Carolyn Kuhl and Jay Bybee, head of the Justice Department’s Office of Legal Counsel. Sen. Barbara Boxer (D-Calif.) has been holding up the Kuhl nomination by refusing to return a home state senator’s “blue slip.” She is concerned about Kuhl’s involvement two decades ago as a Justice Department lawyer in a Reagan administration brief concerning the tax-exempt status of racially segregated Bob Jones University. The administration is still considering a list of candidates for the long-vacant 11th and 12th seats on the D.C. Circuit, and no decision is expected for months. Meanwhile, there has been some mid-term turnover in the White House counsel’s office, which plays a key role in the selection process. Deputy White House Counsel Timothy Flanigan left last month and was replaced by David Leitch. Associate Counsel Bradford Berenson is planning to return to private practice later this month, although he has not said where he is going. His replacement is expected to be named shortly. SENATE SHIFTS The Senate Judiciary Committee, the central address on the Hill for judicial nominations, will see some changes in its membership as the legislative body organizes itself under GOP control. Although no final decisions have been made yet, administration and Hill staffers indicate that the new Republican members are likely to be Larry Craig of Idaho and new Sens. John Cornyn (R-Texas) and Lindsey Graham (R-S.C.). They would replace Strom Thurmond (R-S.C.) who retired from the Senate, Mitch McConnell (R-Ky.), who became Republican whip and is expected to leave the panel, and Maria Cantwell (D-Wash.), who is likely to be the one committee member from the party now in the minority to step down. 6TH SENSE Liberals and conservatives agree that this administration is poised to have a major impact on the federal courts — especially if the president is re-elected next year and if one or more Supreme Court vacancies develop. But the court in which Bush’s choices can have the most immediate and greatest impact is the Cincinnati-based 6th Circuit. Two Bush nominees — Julia Gibbons and John Rogers — already sit on that court, and six more are pending. That’s a total of eight new judges, fully half of the court’s authorized total of 16. Two of the six are Ohioans Cook and Sutton, who were regarded as politically controversial and were not moved forward last year by then-Chairman Patrick Leahy (D-Vt.). The other four are all from Michigan: U.S. District Judge David McKeague, and state judges Susan Bieke Neilson, Richard Griffin, and Henry Saad. Saad would be the first Arab-American judge on the federal appellate bench. All four are being held up by Sen. Carl Levin (D-Mich.), who is piqued that in the second Bill Clinton term, Republicans then in control did not schedule hearings for two Democratic nominees for the 6th Circuit. Levin wants the administration to compromise and put one of the Clinton nominees in. Since a home-state senator’s traditional prerogatives are still a powerful factor, the stalemate may continue. But the administration is talking more about “rolling over” Levin than about dealing with him, so a test of wills may come sooner rather than later. Jason Hoppin, a reporter for Legal Times’ San Francisco affiliate The Recorder, contributed to this article.

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