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Following six years of largely successful federal appellate appointments, President George W. Bush’s pace of sending nominees to the Senate has slowed to a crawl, with just five nominees for 16 openings on appellate courts nationally. No new names have gone to the Senate since March. “At the pace they’re going, the Democrats may say they don’t need to confirm any more names,” said Carl Tobias, a law professor at the University of Richmond School of Law who follows nominations. That pace may be about to speed up as Republican senators return from the Independence Day holiday geared to do battle over several stalled judicial nominations, particularly in the 5th U.S. Circuit Court of Appeals over nominee Leslie Southwick. But the window of opportunity for additional appointments may be all but closed, according to experts on judicial nominations. “I think it is a bit surprising [the White House] has not moved faster to name people, but at the same time it is not likely they will get contested nominees through the Senate,” said Michael J. Gerhardt, constitutional law professor at the University of North Carolina School of Law, who writes about judicial nominations. “The Democrats have no reason to give the president what he wants.” Rallying points In some Republican strongholds, appointment of conservative judicial nominees is a rallying point for support of their candidates, a factor that may induce Bush to put forward names in hopes of “provoking a contest as a way to help Republican senators in the next election,” Gerhardt said. “There are indications that [the White House] is going to try to nominate people for most of the vacancies by the time the Senate returns from the August recess,” according to Curt Levey, executive director of the conservative Committee for Justice in Washington. A White House spokeswoman declined to comment on when more judicial nominations may be released. Currently there are 14 vacancies, with five nominees, and two additional judges who have indicated they will step down when a confirmable nominee is in place. One of the most critical courts for conservatives is the staunchly conservative 4th Circuit. With four current openings and one judge who has said he will step down once a confirmable nominee is in place, the philosophical balance could shift to the center on the 10-judge court if the five spots are left for a potentially Democratic president to fill in 2009. “The 4th is the most important,” said Levey. “That has been a reliably conservative circuit,” he said. In addition, “a lot of the war-on-terror cases go there and if they close Guant�namo Bay prison, then that will be important,” he said. “The White House is less able to have its own say without consulting home senators” about nominations, according to Tobias. Virginia senators John Warner, a Republican, and Jim Webb, a Democrat, have been able to agree on five centrist candidates to submit to the White House, but there is no indication that Bush will oblige. As for the 5th Circuit fight, Senator Arlen Specter, R-Pa., temporarily pulled Southwick’s name from a potential Senate Judiciary Committee vote because the votes were not there to send Southwick to the floor. Liberal groups have challenged Southwick, a Mississippi Court of Appeals judge, citing his record on a few civil rights cases as a problem. But Bush’s problems with confirmation may come from within his own party as well. The nomination of Peter D. Keisler in January to the D.C. Circuit has languished because some Republicans have long opposed filling an 11th seat on a court with a dwindling workload. In addition, it is the one-year anniversary of Senate Judiciary Committee requests for access to Reagan Library files about Keisler’s work in the Reagan administration, according to Judith Schaeffer, legal director for People for the American Way, a liberal group that weighs in on judicial nominations. Overall, the Bush administration has enjoyed broad success in judicial confirmation, with two Supreme Court appointments, 54 appellate judges and 222 district court judges, and has Republican-appointed majorities on all but the 2d and 9th circuits.

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