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Senate Democrats’ surprisingly successful filibuster of judicial nominee Miguel Estrada tied the chamber in knots last week � and cast a long shadow on other Bush nominees for the federal appeals courts who may face the same treatment. The immediate and still-unanswered riddle is when and on whose terms the Estrada deadlock will be resolved. But the fact that Democrats waylaid the nominee for the U.S. Court of Appeals for the D.C. Circuit is a grim sign for at least two other judicial candidates: 5th Circuit picks Priscilla Owen and Charles Pickering Sr. “If we don’t get Estrada, it doesn’t bode well for other nominations,” says a GOP Senate staffer. “This is a huge test for us that we have to pass. Otherwise, we may just as well pack up our bags and go home.” Elliot Mincberg, legal director of the liberal People for the American Way and a chief anti-Estrada strategist, agrees that Democrats will probably try to filibuster other nominations this year. “It depends to an extent on what happens with Estrada, and to an extent on what the White House does � whether they are willing to be flexible at all on these nominations. But there are likely to be more [filibusters],” says Mincberg. Democratic senators are taking it one judge at a time. But Mincberg and others say the Democrats might end up drawing a line between nominees whom they simply oppose for their legal views, and others � Owen and Pickering in particular � whose confirmation could be portrayed as a slap in the face of the Senate. The decisive issue for Pickering may not be the allegation that he is insensitive to racial issues, which led to his defeat in the last Congress and has only become more touchy in the wake of the controversy surrounding his main Senate supporter, Sen. Trent Lott (R-Miss.). Similarly, Owen’s main hurdle may not come from abortion rights activists who oppose her because as a Texas Supreme Court judge she ruled in certain cases against pregnant teens seeking a “judicial bypass” of the state’s parental consent law. Instead, the fate of their nominations could turn on President George W. Bush’s decision to renominate them last month after they had been voted down by the Senate Judiciary Committee last year. Liberal groups say no president before Bush ever renominated a judicial nominee defeated in committee. “That could be seen as an affront to the Senate,” says Mincberg. “You have to look beyond the characteristics of the nominees.” Both Sen. Charles Schumer (D-N.Y.) and Minority Leader Tom Daschle (D-S.D.) indicated when Pickering was renominated that they would back a filibuster against him. Some Republicans see the chances for Pickering and Owen differently. “Pickering has one case that provides the Democrats with cover,” says the GOP Senate aide, referring to a controversial cross-burning case that Pickering presided over in 1994 as a trial judge. “Owen doesn’t have any such case, and at the end of the day, the Democrats lose Owen.” Even the most militant Democrats agree that a filibuster is a risky tactic that shouldn’t be deployed routinely. If the arguments for a talkfest aren’t carefully prepared in advance, support among the public and among senators can wilt very quickly, and the tack can backfire. With Estrada, debate centers on what the Democrats see as a stonewalling campaign by the White House and Estrada backers. Democrats say they are denying Estrada a vote because of his refusal at a hearing last year to discuss his view of Supreme Court cases and because of the administration’s decision not to hand over memoranda Estrada wrote while in the solicitor general’s office. The White House has stood its ground in contending that the documents Democrats seek are privileged communications, and Senate Republicans say Democrats have placed an unfair and unprecedented burden on Estrada. Andrew McBride, a conservative lawyer and partner at D.C.’s Wiley Rein & Fielding who is a friend of Estrada’s and a former clerk to then-D.C. Circuit Judge Robert Bork and Justice Sandra Day O’Connor, acknowledges that Owen and Pickering are vulnerable to filibuster on “process grounds,” but says Democrats “will use their weapon selectively.” Another key factor, of course, is old-fashioned vote-counting. Each nomination will have its own calculus based on party loyalty, the issues raised by the candidate’s record, and even regional alliances such as the link between Sens. Arlen Specter (R-Pa.) and Joseph Biden (D-Del.) that aided 3rd Circuit Judge D. Brooks Smith last year. Another key factor will be how much the judicial sparring is seen to interfere with other presidential and congressional initiatives, particularly as the nation gears up for anticipated war in Iraq. One controversial judicial nominee who received positive signals last week was Jeffrey Sutton, the Jones Day Columbus, Ohio, partner and experienced Supreme Court litigator tapped for the 6th Circuit. At a Feb. 13 Judiciary Committee meeting, Sen. Dianne Feinstein (D-Calif.) voted with all 10 committee Republicans to forward the nomination to the floor. The decision by Feinstein, a respected moderate who helped take the lead in challenging Owen last year, will make it harder for Democrats to mount a filibuster. Ralph Neas, president of People for the American Way, termed Feinstein’s vote “extremely disappointing.” Sutton is not out of the woods, though. He was subjected to a grueling hearing last month, and disability-rights groups have turned out against him in force for litigating cases on behalf of state governments that have limited the reach of the Americans With Disabilities Act. On Feb. 13, Sen. Patrick Leahy (D-Vt.), the committee’s ranking minority member, lambasted Sutton as holding “extreme positions favoring severe restrictions on Congress’ authority to act.” After the Sutton vote, Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), who was engaged in heated partisan debate with Democrats all week, said, “I was surprised, quite frankly, that other Democrats did not vote for Sutton. We have to break the lockstep approach to this. The system’s going to be irreparably damaged if we allow this to go on.” The committee delayed votes on Hogan & Hartson partner John Roberts Jr., nominated for the D.C. Circuit, and Ohio Supreme Court Justice Deborah Cook, tapped for the 6th Circuit. Hatch says he hopes to have votes on those two as soon as the committee reconvenes after its week-long Presidents Day recess. ANSWERING THE CALL The Estrada filibuster formed a tense backdrop for the Feb. 12 hearing for Timothy Tymkovich, a former Colorado solicitor general nominated to the Denver-based 10th Circuit. Several Democratic senators, most notably Schumer, have expressed deep frustration with Estrada for declining to express his views on Supreme Court cases of the past. So when Schumer asked Tymkovich to name three decisions that he disagrees with, Estrada was on everyone’s mind. Tymkovich’s first response was that the question “raises a difficult circumstance for a nominee” and that he was reluctant to reply. But unlike Estrada, Tymkovich, 46, a partner in Denver’s Hale Hackstaff Tymkovich, eventually came up with three. He first acknowledged that he disagreed with the 1996 case Romer v. Evans, which he argued unsuccessfully on behalf of the state of Colorado. That case, which forms a centerpiece of the Alliance for Justice’s opposition to Tymkovich, invalidated on equal protection grounds a Colorado constitutional amendment that prohibited cities and towns from banning discrimination against gay people and lesbians. The other two cases that Tymkovich disagreed with were R.A.V. v. City of St. Paul, a 1992 ruling that found that a hate-speech ordinance ran afoul of the First Amendment, and Buckhannon Board & Care Home Inc. v. West VirginiaDepartment of Health and Human Resources, a 2001 case that denied attorney fees to a plaintiff in a civil rights case after a defendant voluntarily changed its policies without a court ruling or a settlement. Tymkovich said that as state solicitor general he advocated strongly in favor of hate-speech laws, and that as a private lawyer he has argued against applicability of Buckhannon. Schumer seemed satisfied with Tymkovich’s answers. Tymkovich drew two hours of questioning in all, primarily from Schumer and Sen. Russell Feingold of Wisconsin. Feingold was sharply critical of a law review article that Tymkovich wrote after Romer v. Evans that found the Supreme Court decision to reflect “an ad hoc, activist jurisprudence without constitutional mooring.” The act of writing the article “goes beyond your zealous advocacy” on behalf of the state, Feingold said. The senator questioned Tymkovich’s commitment to civil rights: “What is the difference between African-Americans and gay people, in terms of protecting them from discrimination?” he asked the nominee. Tymkovich replied that he had no animus against gays and lesbians, but that he was obligated to give the constitutional amendment the best possible defense. And though Tymkovich said he disagreed with the constitutional analysis that the Supreme Court used in Romer, he said he would follow the case as the law of the land.

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