Thank you for sharing!

Your article was successfully shared with the contacts you provided.
For conservative activists, the issue of pushing like-minded judicial nominees onto the federal courts is not dead — far from it. Right now, after a robust 2005, it lies in more of a persistent vegetative state. But this is one patient that Senate Majority Leader Bill Frist (R-Tenn.) might prefer to leave well enough alone. Sensing their influence on the wane, conservatives gathered last week not on Capitol Hill but amid a throng of reporters at the National Press Club to question Frist’s priorities. The assembly of conservative luminaries, including Janet LaRue of Concerned Women for America and Manuel Miranda of the Third Branch Conference, was intended as a reminder to Frist — who in the past has delivered copiously on the issue of conservative judicial nominations — that they will not be ignored. The message: The Senate must act on President George W. Bush’s stalled nominees. “This is an issue that requires a buildup of steam, and we want Frist to spend more scheduled time on judges . . . as if this were a priority,” says Miranda, a former Frist aide who was forced out in 2004 after a scandal involving GOP staffers obtaining Democratic strategy memos on judicial nominations. Conservative activists have chastised the Republican leadership in recent months — Frist, in particular — for failing to put the issue of judicial appointments higher on their list of priorities despite a number of high-profile appointments last year, including the confirmation of Chief Justice John Roberts Jr. to the U.S. Supreme Court. Divisive nominees such as Janice Rogers Brown, William Pryor Jr., and Priscilla Owen were green-lighted to the federal appeals courts after the Senate was nearly brought to a meltdown over the proper use of the filibuster. And earlier this year conservative favorite Samuel Alito Jr. was installed on the Supreme Court. Further, Republicans scored another victory last month with the confirmation of Brett Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit. But with Frist leaving the Senate later this year, midterm elections testing the nerve of incumbent Republicans, and Bush’s approval numbers in the tank, there is little Senate appetite to go the distance on the issue. “It’s one thing to push a sweeping judicial agenda when Bush had a lot of political capital in the bank, but this administration is running on empty right now,” says Jamin Raskin, a professor of constitutional law at American University, Washington College of Law. “They just don’t have the official resources to embrace a lot of controversial nominees.” Nonetheless, conservatives want to see action. Terrence Boyle, nominated to the 4th Circuit in early 2001, still awaits a vote, as does William James Haynes II, whose 2003 nomination to the same court has been stalled. He was renominated last year. William Myers III, a leftover from the compromise struck last year by the “Gang of 14″ senators, has not moved since his nomination in 2003 to the 9th Circuit. And Michael Wallace, nominated to the 5th Circuit earlier this year, awaits a hearing. Myers, Boyle, and Haynes are tougher sells in the Senate, the last of the large crop of judicial nominees who require the approval of a chamber tired of bickering over judges. Boyle, whose decisions as a U.S. district court judge have had an unusually high percentage of reversals, has recently come under fire for issuing rulings involving businesses in which he held investments. And Haynes, the general counsel for the Department of Defense, oversaw a Pentagon working group arguing that the administration’s hands shouldn’t be tied by international and domestic restrictions on torture, a point of contention for anti-torture Sens. Lindsay Graham (R-S.C.) and John McCain (R-Ariz.). Despite Miranda’s prediction that Frist has committed to confirming Boyle by the July recess (officials in Frist’s office say they have had “no contact with Mr. Miranda”), the majority leader is not likely to gear up for a showdown on judges as a parting shot before he retires from the Senate later this year. “There’s a difference when you put someone up based on their ideology and background and have a worthwhile debate and come out on top. But if you are going to put somebody up and the debate is going to be about if you broke the law or the war on terror policies of the administration . . . well, it’s a conscious decision by the majority leader not to erect this debate,” says one former Republican Judiciary Committee staffer.
• After Alito, Liberal Groups Look to Reload (February 27, 2006)• In Nominations Battle, Missed Opportunities on Both Sides (May 25, 2005)• Lobbyists Steel Themselves for Senate Meltdown Over Judges (March 30, 2005)

Miranda admits that it was easier to sell previous nominees. The life stories of the remaining crop of candidates aren’t as compelling. Unlike in the case of Rogers Brown, there are no daughters of sharecroppers in this batch. And the timing couldn’t be worse. “There was widespread sense that the president overplayed his hand with the gay marriage amendment,” says Raskin of the vote two weeks ago to ban same-sex marriage. “The public is in no mood for red-meat ideological politics.” NO MORE STEAM? While conservatives may not be trumpeting the nominees as aggressively as they once did, they are anything but deflated, notes Wendy Long of the Judicial Confirmation Network. But they are simply spent after the string of successes last year. “My e-mail traffic went down about 90 percent after the Alito hearings,” says Cleta Mitchell, a partner at Foley & Lardner in Washington and an American Conservative Union board member. “It was an exhausting fight, and people needed a rest to regroup.” Contributing to the fatigue, Mitchell notes, was the ill-fated nomination of White House counsel Harriet Miers to the Supreme Court. Conservatives mounted an aggressive campaign to defeat her ascent. “People were irritated they had to spend one nickel of energy on that,” Mitchell adds. Long says her troops are getting revved up in a number of states, including South Carolina, home to Sen. Graham, who is staging what Long calls a “silent filibuster” of Haynes. “Republicans fail to appreciate this issue at their peril,” says Long. Her conservative group sought out the advice of Covington & Burling lawyers and former Frist aides Martin Gold and William Wichterman during the Alito confirmation hearings. “Nothing but good can come by putting through as many judicial nominations as we can.” And Miranda’s group has sent out a letter to the Senate leadership reminding them of their duty when it comes to judicial nominations and criticizing them for allowing circuit court nominees Charles Pickering, Miguel Estrada, Carolyn Kuhl, and Henry Saad to be defeated or withdrawn. “It is no wonder that the White House is having trouble recruiting qualified men and women to serve on the bench,” the letter states. “Opponents are to be expected, but not the carelessness of friends like you.” Miranda continues to fire off e-mails. In a recent blast he notes that advocates made 5,000 calls to the Senate in one day. But if conservative interest groups are having a difficult time mounting an effective influence campaign, it may be that they are victims of their own success. After last year’s wave of triumphant confirmations, it looks like they are winning, political watchers say. A staffer in the Senate GOP leadership calls the focus by interest groups or “amateur pop-off artists” a “tragically flawed and thunderously misplaced” strategy, while others have expressed sympathy over the quandary the leadership faces on the judge issue. “My sense from the leadership is that anybody they think they can get a vote on they’ll move,” says conservative icon Grover Norquist. “But if something is going to get hung up, we don’t have the time to spend x number of hours on this.” Yet the groups press on. “Our constituents will not be put off,” says LaRue of Concerned Women for America. “This is inexcusable when the Senate has a Republican majority.”

Joe Crea can be contacted at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.