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When the dust of November’s midterm election settles and the roster in Congress has changed-perhaps dramatically-President George W. Bush may have a much tougher time filling the bench with the conservative judges that he has pushed in his first six years in office. Adding to the usual uphill battle a lame-duck president faces in filling judgeships is an increase in conservative animosity directed at sitting judges. The criticism has so politicized relations between Congress and the judicial branch that retired Supreme Court Justice Sandra Day O’Connor and Bush’s own chief justice, John G. Roberts Jr., have warned that judicial independence may be at risk. The “troubling trend for me is the institutional criticism by Congress of judges and their rulings,” said Susan Haire, an associate professor of political science at the University of Georgia who studies the federal courts. “That is new. I’m not sure it is gaining momentum but it troubles a lot of people who study courts,” she said. Despite the contentious atmosphere surrounding confirmations, Bush has given every indication that he intends to be aggressive in promoting his candidates-even in the face of stiff Democratic opposition. Bush’s aggressive move One sign of this aggressive attitude is Bush’s recent renomination of five appellate candidates who had been blocked by Democrats until the Senate’s summer recess, including a 5th U.S. Circuit Court of Appeals nominee, Michael Wallace. Wallace is the only one of Bush’s appellate candidates voted unanimously “not qualified” by the American Bar Association. The ABA explained it believes he is “hostile” to minorities and “lacks tolerance.” Wallace is a Mississippi attorney and former aide to Senator Trent Lott, R-Miss. “The vacancy rate [on the courts] is only 8%, which is not too high, but the public is told there is a crisis in judicial selection,” said Elliot Slotnick, professor of political science at Ohio State University. “I have been struck in the last couple months [by] the return of this aggressive strategy,” he said. Traditionally, political parties out of power attempt to slow the confirmation of judges in the last year of a president’s term in hopes that they can fill the accumulated vacancies if they take power, according to Leonard Leo, executive director of the conservative Federalist Society for Law and Public Policy Studies and national co-chairman of the Republican National Committee’s Catholic outreach. He disagrees with O’Connor’s and Roberts’ concerns about judicial independence. “There is no threat to independence,” he said. “Much of the criticism [of judges] is warranted.” Leo said the society does not advocate for or against specific judicial nominees, although individual members may. As for judicial appointments, “Whatever happens on Nov. 7, you’re not going to see a reduction in the tension level,” he said. “There is no question this administration has politicized lower court nominations more than any other administration,” said Elliot Mincberg, vice president and legal director of the liberal People for the American Way. The president needs another 112 confirmations over the next two years to bring his current 266 judicial appointments to the levels achieved by two-term presidents Bill Clinton, with 378, and Ronald Reagan, with 384. There are currently 14 appellate vacancies out of a total of 179 seats and 31 district court vacancies out of a total of 678 places, with a half dozen more opening expected by mid-2007. “In the last two years of a lame-duck presidency, he just won’t be able to push through some of the types of nominees he has before,” said Carl Tobias, professor at the University of Richmond School of Law in Richmond, Va. “The White House just has to negotiate.” But negotiation doesn’t appear to be part of the battle plan. Along with the renomination of Wallace, Bush sent four other controversial nominees to the Senate for a second round, but they too were not approved before the September recess and could be back a third time in the lame-duck session. They include two 4th Circuit nominees, district judges Terrence Boyle and William J. Haynes II, and 9th Circuit nominees William Myers III and Norman Randy Smith. Boyle was criticized for ruling in cases involving corporations in which he allegedly had an interest, according to a statement last month by Senator Patrick Leahy, D-Vt. Haynes was deeply involved in shaping policy on the treatment of enemy combatants, and Myers drew opposition for his “anti-environmental record,” Leahy said. Smith, of Idaho, is opposed by Senator Dianne Feinstein, D-Calif., who said the seat should go to a California judge because it was formerly held by one. The contentiousness surrounding Bush appointments grew soon after he took office. It was marked by the elimination of the ABA’s role in prescreening nominees to flag potential problem candidates before they became public. And the Senate changed rules, leaving minority Democrats with no procedure to affect confirmation except the filibuster. Democrats did filibuster 10 judicial nominees in the 108th Congress. This led the Republican majority to consider changes that would block further filibusters, dubbed the “nuclear option.” It was avoided when 14 senators from both parties agreed to break the confirmation logjam and avert the showdown in May 2005. Eventually, the Senate confirmed all 10 filibustered nominees. Cracks in the ranks Meanwhile cracks are appearing in Republican ranks over judicial confirmation, with Senator Sam Brownback, R-Kan., holding up a Michigan judge’s nomination to the federal bench because she may have led a commitment ceremony for a lesbian couple in Massachusetts four years ago. Senators Charles Grassley, R-Iowa, and Jeff Sessions, R-Ala., have held up two nominees to the D.C. Circuit because the court currently has 10 judges and both senators have argued since the Clinton administration that 10 is enough. Tensions are not confined to the Senate. Representative James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, pushed for creation of an inspector general for the judiciary that many judges saw as an attempt to interfere in decision-making. In 2002, Sensenbrenner threatened to subpoena Chief U.S. District Judge James Rosenbaum of Minnesota, and reviewed five years of his sentencing records after Rosenbaum testified against a bill to impose a mandatory minimum sentence for first-time drug offenders. In 2005, 118 representatives signed a resolution declaring the display of the Ten Commandments protected by the U.S. Constitution; the measure would have required courts to accept that assertion and would forbid them to rule on its constitutionality. Another measure that passed the House, 247-173, would deny jurisdiction to federal courts, including the Supreme Court, to interpret the Pledge of Allegiance or its validity. Perhaps the most intense blowup came when Congress passed legislation affecting a single state court case. It gave a Florida federal court jurisdiction over the case of Terri Schiavo to decide if the comatose woman’s feeding tube should be removed. When the federal judge and later the appeals court upheld rulings that would have allowed Schiavo to die, they were accused by House Majority Leader Tom DeLay, R-Texas, of ignoring the clear intent of Congress. Seeking Hispanic edge Yet despite the acrimony between Republicans and Democrats regarding judges, the Bush administration has managed to get 50 appellate and 205 district court judges confirmed in the last six years, as well as two Supreme Court justices. The Bush administration’s priority seems to be to remake the bench in a conservative image but also to cultivate Hispanic support for the Republican party with the appointments, according to Rorie Solberg, a political science professor at Oregon State University who has studied Bush appointments. “He still appoints many more Hispanics than African-Americans,” she said. She said that Bush has tended to follow the Reagan model in appointments, being more concerned about moving the courts to the ideological right than about racial or gender diversity. Currently, eight of the 12 circuit courts have either a black or a Hispanic judge, but not both. There is one Asian-American, U.S. District Judge Dana Makoto Sabraw of San Diego, and there are no Native American circuit court judges, she said. “What I found in his first term was he appointed lots of African-Americans and Hispanics, but they did not make much headway in overall percentage of judgeships because lots of white men were appointed to newly created seats,” Solberg said. Tobias, of the University of Richmond, sees the 4th Circuit as a missed opportunity for Bush to put his stamp on an already conservative circuit court because his two nominees have been bottled up. Bush did succeed in putting three conservative judges on the D.C. Circuit, which is considered the most important among the appellate courts because its docket is filled with federal-agency cases affecting the entire country, Tobias said. And in the 6th Circuit, where Republicans successfully blocked Clinton nominees, Bush has been able to fill those spots, tipping the balance of the court toward the conservatives. While there hasn’t been enough time yet to see how Bush’s appellate judges will change the courts, “their importance is not right now, but 10 years from now as their jurisprudence gets established and develops,” said the University of Georgia’s Haire.

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