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Washington-They are the “Filibuster 10,” stopped in their quest for appellate court seats by a wall of Democratic opposition. Their nominations, and those of five other would-be appellate judges that have yet to reach the Senate floor, will expire at the end of the congressional session that is soon drawing to a close. Two of the Filibuster 10-Charles W. Pickering Sr. and William H. Pryor Jr.-are serving recess appointments to the 5th and 11th U.S. circuit courts of appeals, respectively, and will have to face Senate confirmation for permanent seats. And one, Miguel Estrada of Los Angeles’ Gibson, Dunn & Crutcher, withdrew his nomination after a number of attempts to break the filibuster failed. But the Bush administration thinks highly of Estrada, and he is still mentioned as a possible nominee, even for the Supreme Court. For now, groups on the left and the right are waiting to see if the president will renominate any or all of the 10 when the new Congress convenes in January. “Clearly if he wants to choose someone for those slots who would be conservative but not a rigid ideologue-someone like his more than 200 nominees the Senate has confirmed to the federal courts-the nominee would be confirmed,” said Glenn Sugameli, senior legislative counsel at Earthjustice and head of the environmental community’s judicial nomination project. “If he wants to ensure a continuing battle over nominees who have very serious records of anti-environmental activism, rigid ideology and very serious ethical problems, then he can renominate these people.” But Sean Rushton, executive director of the Committee for Justice, which exists to “restore the judiciary to its proper role under the law and counter the partisan warfare that has arisen against constitutionalist judicial nominees,” said, “I know that it is very likely the White House will renominate the 10, unless they individually request not to for personal reasons.” And they should be renominated, said Rushton, adding that Senate Democrats should feel “rebuked” for their use of the filibuster by the results of the elections for president and U.S. Senate. Little appears to have changed in the nomination equation outside of the Senate. If anything, supporters of Bush judicial nominees are more energized by election results that boosted the Republicans’ majority in the Senate. They have vigorously attacked moderate Republican Senator Arlen Specter of Pennsylvania-next in line to become chairman of the Senate Judiciary Committee-for suggesting that nominees supporting the demise of Roe v. Wade were unlikely to be confirmed. And they have threatened to revive a proposal to change Senate rules to end the judicial filibuster if Democrats do not fall in line. Both sides do agree, however, that the next step is up to the president, and all are watching the Supreme Court where any vacancy raises the stakes in this always high-stakes battle. Ideology and control In the Senate, the filibustered nominees do not represent in all cases a battle for control of the federal circuits. That battle has largely been lost by Democrats. Of the 13 federal circuits, Democratic appointees who are active judges hold the majority on only two-the 9th and the 2d-and the 2d is closely split with seven Democratic and six Republican appointees. Of the remaining 11 circuits where Republican appointees dominate, they have 2-1 or better majorities in five of the 11 circuits. Even where control is at stake, the battle can be multilayered in the Senate. Consider the 6th Circuit, which is split evenly between Republican and Democratic appointees. During the last three years of the Clinton administration, Senate Republicans refused to hold hearings on Clinton’s nominees to that circuit. The nomination of Michigan’s Helene White sat in committee for four years-a record-and the nomination of Michigan’s Kathleen McCree Lewis also languished and died. The Senate confirmed four Bush nominees to the 6th Circuit: two in 2002 and two in 2003. But Michigan Democratic senators Carl Levin and Debbie Stabenow have submitted negative “blue slips” on four Michigan nominees by Bush to that court: Susan Bieke Neilson, Richard Griffin, Henry Saad and David McKeague. The two senators are protesting the treatment of White and Lewis. A negative blue slip from a nominee’s home state senator is generally honored by the Senate and keeps a nomination from going to the floor. However, Senate Republican leaders moved the nominations of Griffin, Saad and McKeague to the floor last summer, where they were filibustered. The environmental community also has played a significant role in the filibusters of Bush nominations to the D.C. and 9th circuits. “We have always focused very heavily on the D.C. Circuit,” said Earthjustice’s Sugameli. “It is absolutely critical because it is the circuit which decides a number of national protections under environmental statutes, either exclusively or primarily.” There are three vacancies on the 12-seat D.C. Circuit. But filling those vacancies has been complicated not only by the allegedly anti-environmental views of some nominees, but also by the fact that some Senate Republicans, such as Charles Grassley of Iowa, and even one D.C. Circuit judge, Laurence Silberman, have questioned the need for filling them. The 9th Circuit covers a lot of federal land and is home to a number of endangered species and natural resources. The environmental community came out in force against 9th Circuit nominee William G. Meyers III, a former solicitor of the Department of Interior, who, Sugameli charged, “has the most detailed anti-environmental record of any of the nominees.” The environmental community’s opposition to Meyers, he added, was partly because of “who he is” but also because of the circuit to which he was nominated. Meyer’s nomination also failed a cloture vote last summer. Trying again? The Senate in January will be split 55 Republicans, 44 Democrats and one independent. A cloture vote ends a filibuster and requires 60 votes. Nan Aron of the Alliance for Justice, Earthjustice’s Sugameli and others still opposed to the Filibuster 10 contend that cloture votes on them, if they are renominated, would still fail even with the new Republican seats in the Senate. Of the 20 cloture votes taken on the Filibuster 10, the highest number of votes was 55. None of the nominees received enough Democratic votes, such that the new Republican seats will push those votes to 60, according to opponents of the nominees. “If he renominates any of those filibustered nominees, it is sure to whip up rancor and even more filibusters,” Aron said. Sugameli agreed, adding, “I don’t see any reasons why the result of filibuster or cloture votes would change on the merits. The only caveat I would give is on the Michigan nominees. Is some sort of accommodation with the Michigan senators possible? They apparently had a proposal that Senator [Orrin] Hatch liked and endorsed, but the White House was not willing to go with. That is very specific to Michigan.” But Rushton sees a different possible dynamic in the new Senate. “I think [Senate Democrats] . . . are going to have to give serious consideration to whether the election results . . . show their high-profile battle with the president over the courts, and especially their use of filibusters, have been rebuked,” he said. “You’ve got 55 presumably solid votes now, although we don’t always know how moderate Republican senators will act,” he added. “If there is a Supreme Court vacancy especially, this issue will be so much more elevated and there will be complete national attention. It will take a lot for Democrats to stick together and hold tighter a filibuster.” If the tone on judicial nominations in the new session is set by senators Edward Kennedy, D-Mass., and Charles Schumer, D-N.Y., who have said they will not shrink from opposing nominations if necessary, Rushton said, “That means a whole bunch of different things for Senate Republicans-first of them possibly the reform of the filibuster rule itself.” Everyone takes very seriously the possibility of a change in Senate rules on the use of filibusters. “It’s fairly realistic assuming the Democrats do not signal a new conciliatory stance,” said Rushton. “The way conservatives look at it is this is just a way of returning to the historical status quo. Filibusters have never been used to block nominees who have majority support on the floor.” A change in the filibuster rule is serious among some, but not all, Senate Republicans, said Eliot Mincberg, vice president and general counsel of People for the American Way. “Some moderates and conservatives have strong hesitation about making such a fundamental change in the rules, particularly by majority vote, which, frankly, is a violation of Senate rules itself,” he said. Senator Patrick Leahy, D-Vt., minority chairman of the Senate Judiciary Committee, said: “We have used filibusters sparingly and only as a last resort, when long-standing rules and practices of the Senate had been changed, bent or broken.” But he said he hopes the president and his staff “truly intend to improve their working relationships with the other side of the aisle.” Right now, there are “so many moving parts” to the judicial nomination picture that it is hard to predict what many happen in the new Congress, Rushton said. But the next step is up to the president, many agree. “He holds all the cards,” said Aron.

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