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Last month, the White House threw down the gauntlet on federal judicial selection. President George W. Bush announced that he will resubmit 12 highly controversial appellate nominees, most of whom Senate Democrats filibustered in the 108th Congress, when the new Congress convenes in early January. Illustrative are Janice Rogers Brown and Thomas Griffith for the U.S. Circuit Court for the District of Columbia. Several explanations may underlie the decision to renominate these individuals whom the Democrats have vociferously opposed and have publicly stated they will continue fighting, despite Bush’s conciliatory remarks about bipartisanship. First, Bush asserts that he has a mandate to name politically conservative judges. The chief executive made judicial selection an issue in his re-election, pledging to stop Democratic “obstructionism” and to choose jurists who would apply the law, rather than legislate from the bench. Second, the enlarged GOP Senate majority has fortified Bush’s position. Third, forcing this question seems politically cost-free and allows the chief executive to motivate his base. Tendering nominees who oppose reproductive choice, favor prayer in public schools or hold conservative perspectives on other “hot button” issues that federal judges resolve is viewed as a “win-win” strategy. If these nominees gain approval, the president will create or enhance conservative majorities on the 12 regional circuits, which are basically the courts of last resort in their geographic areas, as the Supreme Court hears so few appeals. Even should Democrats prevent confirmation, Bush assumes he can win politically by claiming that he fought against Democratic obstructionism and for the nominees, regardless of their ideological views or qualifications. Fourth, the chief executive thinks his administration will be strongest at the new term’s outset, when it may capitalize on a fresh re-election victory and a putative mandate. Bush apparently reasons that he must act forcefully now to attain his selection goals, and that compromise would only be warranted near the second term’s end. Yet renomination of these judicial candidates and vigorous promotion of their approval will clearly have deleterious effects. The actions will continue the pernicious dynamics of recriminations and countercharges, partisan infighting and paybacks that have suffused appointments since 1987. For instance, Democrats have vowed that they will filibuster the nominees. In addition, the tactics will further undermine severely eroded respect for the process, the Senate, the Executive and even the courts and the judges named. Also, lengthy judicial openings impede prompt and fair case resolution. For example, the 6th Circuit, which hears appeals from Kentucky, Michigan, Ohio and Tennessee, has functioned without a quarter of the court’s judges since 2000. These prolonged vacancies have made circuit disposition rates the nation’s slowest. Insofar as forcing the issue on appellate nominees exacerbates tensions between the GOP and Democrats, this could also poison Supreme Court appointments. Given Chief Justice William Rehnquist’s poor health, and the justices’ advanced ages, the president might name several to the high court. If Bush’s appellate selection plan worsens already deteriorated relations between Republicans and Democrats, that may jeopardize high court nominees or seriously delay approval. The Senate in turn will consider no appeals court nominees while protracted, divisive confirmation hearings for justices proceed. Numerous options hold greater promise than the course of action on which Bush will soon embark. First, attempts should be made to decrease the overheated rhetoric and partisan bickering. Second, the chief executive should consult with the Senate, a measure that President Bill Clinton used to good effect when the GOP had a majority. If Bush broached candidates before nomination with Democrats, such as Senate Minority Leader Harry Reid, D-Nev., the process would operate more smoothly. Third, the president may wish to tender some nominees who have rather centrist views, which can facilitate their approval. Congress might also pass legislation that would authorize new judges to treat increasing work and case loads. Bush may even permit Democrats to suggest candidates in exchange for agreeing to his nominees or a judgeships bill and, thus, inaugurate a bipartisan judiciary. Other bold strokes would be to resubmit Clinton nominees or elevate his district court appointees, as Bush did with Circuit judges Roger Gregory and Barrington Parker. Indeed, the 6th Circuit logjam might break if the president recommended a Clinton nominee for the court. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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