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It was, in the view of the White House and Senate Republicans, a gesture of serious conciliation. And if, four years ago, Democrats had seen it as such, it’s possible the events of the past week on the Senate floor may not have occurred. Instead, when President George W. Bush unveiled, with great ceremony, his first slate of appellate court nominees on May 9, 2001 � with two liberal candidates among them � Senate Democrats were pleased, but hardly impressed. Republicans, banking on the good will they imagined would come from the nomination of Roger Gregory � a recess appointment to the federal appeals court made by the exiting Bill Clinton � were expecting at least a token of appreciation. A few short weeks later, when Sen. James Jeffords of Vermont left the GOP and the Senate swung into Democratic control, the Republicans received anything but a thank-you note: Gregory was the first of the 11 nominees confirmed and another, Democrat Barrington Parker Jr., was the second. But only three GOP nominees from that initial slate were confirmed during the 18 months Democrats were in charge; two of them in the waning days of Democratic control. “There was a feeling at the White House that the Democrats had taken the president’s olive branch and slapped him across the face with it,” says Bradford Berenson, an associate White House counsel at the time involved in judge picking. “The minute that Jeffords defected, they immediately confirmed the two Democrats,” adds Berenson, now a partner at Sidley Austin Brown & Wood. “Then they denied hearings to the rest for unconscionably long periods of time.” As the Senate reaches a defining moment in its history this week � whether it arrives at an 11th hour compromise that avoids a vote on judicial filibusters or not � there is a sense that the institution’s increasing rancor and the surge of invective from outside interest groups have led it inevitably to this spot. But it didn’t have to happen this way. There was no inevitability to the current situation, which pits Democrats’ insistence on retaining the filibuster and the right to confirm judicial nominees with 60 votes against the Republican majority’s determination that a simple majority of 51 should suffice. In fact, there have been numerous points along the way where both parties could have worked out compromises that might have led Democrats to filibuster fewer nominees, or none at all, and for Republicans to offer up less-incendiary judicial candidates. “In each successive administration, the obstruction of judicial nominations has escalated,” Berenson says. “It’s not that anybody’s hands are completely clean.” 20 YEARS OF CONFLICT Sometimes, as appears to have happened with the May 2001 slate of nominees proposed by President Bush, neither party quite grasped the other side’s point of view. Democrats, for example, found the nominees far more to the right than President Bill Clinton’s nominees had been to the left. And the White House took heat from hard-line conservatives for renominating Gregory, even though he was supported by both of Virginia’s GOP senators. At other junctures, the accumulated weight of nearly 20 years of acrimony over the judicial selection process, starting most famously with Judge Robert Bork in 1987, was impossible to escape. Other political currents also got in the way. In 1996, Sen. Trent Lott (R-Miss.) replaced Sen. Bob Dole (R-Kan.) as Senate majority leader, when Dole resigned his Senate seat to run for president. In his presidential bid, Dole invoked the specter of judicial activism, bringing the issue some notoriety. Meanwhile, the Senate, after the elections of 1994 and 1996, moved sharply to the right. “The election of a Republican Senate and the ascension of Trent Lott as majority leader took away the moderating influence of Bob Dole,” says Herman Schwartz, a professor at American University Washington College of Law. “At this point, Senate Republicans have decided they are going to block or stall every nomination, particularly those for the Court of Appeals.” That mistrust hardened through the eight years of Clinton’s presidency, when dozens of district and appellate court nominees were never given a vote in the Senate Judiciary Committee, which was led for the last six years of the Clinton administration by Utah Republican Orrin Hatch. Says Sen. Patrick Leahy (D-Vt.), the committee’s longtime top Democrat, in a statement to Legal Times: “The list of broken rules and precedents is long � from the way that home-state senators were ignored, to the way hearings were scheduled without consultation, to the way the committee questionnaire was unilaterally altered, to the way the Judiciary Committee’s historic protection of the minority to be heard was repeatedly violated.” It was into this environment that Bush offered up his “conciliatory” slate of nominees in May 2001, an atmosphere where the will to compromise had been further poisoned by the disputed 2000 presidential election, decided by the Supreme Court in Bush v. Gore. And while Democrats are quick to brag that during their 18-month reign, they confirmed judges at a faster pace than when the GOP controlled the chamber during the first Bush administration, Republicans say that after the 2002 election, the Democrats continued to play hardball as if they were still the majority party. NO DEAL ON ESTRADA That’s when the disputed judicial filibusters began in earnest, starting with Miguel Estrada, the former assistant solicitor general in the Clinton Justice Department and a partner at Gibson, Dunn & Crutcher, who was nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit. “Estrada is the one that really gets Republicans up in arms,” notes a former GOP Senate leadership aide. “There was no home-state objection. He’s clearly qualified. And he has an amazing life story.” Estrada was filibustered seven times, beginning in March 2003; he withdrew his nomination in September 2003. Democrats claimed at the time that their filibuster was a result of Estrada’s stonewalling over questions about his judicial philosophy. But the Harvard-trained, conservative Hispanic lawyer was also widely viewed as a leading candidate for the next Supreme Court opening, and many Democrats did not want him on the high court. “I was trying to cut a deal with a key Democratic staffer,” says the former GOP leadership aide, “and I said, ‘Would you move him if we put in writing that we wouldn’t nominate him to the Supreme Court?’ and he said, ‘Yeah, probably.’” It was during the Estrada debate, argues a current senior GOP leadership staffer, that Democrats had their best chance yet to work out a way to let more nominations of their liking through. “When only Estrada was on the table, a deal could have perhaps been cut to make the whole thing go away, like ‘We’ll get rid of Estrada if you agree not to filibuster any more nominees,’ ” says the staffer. “ But by the time 2003 was over, we were in trench warfare, and all the different sides were maneuvering, and an intransigence had set in. “If we’d known they’d keep pushing and pushing, we could have given them their one hide. But that time ended as soon as they went after Owen,” adds the staffer, referring to Texas Supreme Court Justice Priscilla Owen, whose nomination is now on the Senate floor. 10 BLOCKED NOMINEES Owen, who was one of the original nominees in Bush’s May 2001 slate, has already been filibustered four times, beginning in May 2003, two months after the first Estrada filibuster. Ultimately, 10 of Bush’s appellate court nominees were filibustered in the previous Congress, and Republicans were quick to see a concerted strategy of obstructionism, one they believe makes compromise that much more difficult. But some Democrats say there never was such a strategy � or any strategy, for that matter. Recalls a former senior Democratic Judiciary staffer who handled judicial nominations: “These 10 people were decided on a very case-by-case basis. It’s totally ad hoc. Think how un-unified the Democratic Party is,” adds the staffer. “They voted for 208 other nominees to be confirmed.” But the senior Senate GOP leadership staffer who works on judicial nominations says Democrats might have had better luck if they had eschewed politicking the Judiciary Committee altogether, by far the Senate’s most partisan panel, and made their case against certain nominees to individual Republican senators. “They should have gone member-to- member on it,” the staffer says. “If these are genuinely extreme candidates, they could have persuaded them.” In the 108th Congress, which began in January 2003, there were just 51 Republican senators. “That’s a one-vote majority. You’re going to tell me they can’t get Susan Collins or Olympia Snowe?” the staffer continues, referring to Maine’s two moderate Republican senators. “They didn’t try to do this. They never wanted to go through that process.” While some expected this year’s change in Democratic leadership from former Sen. Tom Daschle of South Dakota to Sen. Harry Reid of Nevada to produce a more aggressive minority, others see the current situation as a product of increasing Republican antagonism. “People telescope these things, attributing today’s atmosphere to yesterday’s motives,” notes Edwin Kilgore, the policy vice president at the centrist Democratic Leadership Council. “What the Senate Judiciary Committee Democrats in particular were grappling with was that the old system of informal consultation on judicial nominations had gone away,” he says. “That kind of informal arrangement had been around for ages,” Kilgore adds. “The decision to filibuster this number of judges was more than anything else an effort to get their attention, to make it clear that a complete failure to consult was unacceptable.” NO MOVE TO THE MIDDLE Democrats complain that since the May 2001 slate with its two Democratic nominees, the White House has seen no further need to compromise or consult. That feeling was only exacerbated in February, they say, when Bush sent back to the Senate seven of the appellate court nominees filibustered in the last Congress. “There are two things in the White House that have made the possibility of consensus slim to none,” notes People for the American Way’s Elliot Mincberg. “One is the general view at the White House that we want 100 percent of everything. The other is that Karl Rove discovered that this was a great political issue and a terrific way to mobilize the far right.” For months it has been conventional wisdom that the 2008 presidential ambitions of Majority Leader Bill Frist (R-Tenn.) and his need to keep his conservative base appeased have blocked his ability to reach any agreement with Democrats on the filibuster issue. At the same time, liberal interest groups like People for the American Way have ramped up their rhetoric in public campaigns. So pulled by the outside extremes are the two parties’ leaders, that it was a clique of a dozen or so moderates last week who had the only chance of striking a deal. “The problem you have is that everyone says for these senators to just get along,” notes Stewart Verdery, who from 1998 to 2002 handled judicial nominations for then-Assistant Majority Leader Don Nickles (R-Okla.) and is now a lobbyist at Mehlman Vogel and Castagnetti. “But there’s no incentive for a politician to be reasonable, there’s no political force to be moderate. “For the Dems, environment and abortion groups don’t become important by letting people get confirmed. And on our side, it doesn’t help them if the president nominates moderate judges.” The stakes for both sides could not be higher. Not only is Chief Justice William Rehnquist expected to step down at the end of this term, but if Sandra Day O’Connor, long the Supreme Court’s most consistent swing vote, should also resign, her replacement could tilt the bench firmly to the right � the same outcome that a Bork victory would have had as well. It is the nature of the debate itself, argues Republican strategist Whitt Ayres of Ayres McHenry and Associates, that makes compromise so difficult. “There’s a tension in public opinion as well,” Ayres notes. “The overwhelming majority of the country truly wants these judges to get an up-or-down vote. On the other hand, people at this point are uncomfortable with changing the filibuster to give them a vote.” It’s a bit like the dilemma in which Bush finds himself. “Bush could have avoided a fight,” says Ayres, “if he’d just chosen to surrender.” T.R Goldman can be contacted at [email protected].

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