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Seats on the federal bench are some of the most powerful political chits in Washington. And for six years, President Bill Clinton and a Republican-controlled Senate have been fighting over them, sometimes bitterly. Now, with the Clinton administration and the 106th Congress entering their waning moments, the battles are growing more bitter still. The sparring over the racial makeup of the bench is fierce, even though, by many accounts, the Clinton years have been productive: he has appointed — and the Senate has confirmed –more women and minority judges than any other administration in history. Overall, Clinton has appointed 374 judges, or almost 45 percent of the federal judiciary. But that’s legacy talk, grist for the historians. None of it really matters right now. With an election in three months that holds open the possibility of a GOP return to the White House after an eight-year absence, the only number with any significant meaning is 35. That’s how many judicial nominees are awaiting Senate confirmation. Each nominee –including 13 who have waited a year or more even to get a hearing before the Senate Judiciary Committee — is hoping to slip through when the Senate reconvenes next month for a frenetic few weeks of pre-election lawmaking. It won’t be easy. The political calculus — straightforward, if submerged beneath the rhetoric of a campaign season — has changed. The more vacant judgeships that get filled between now and Nov. 7, the fewer that will be left open for the next president — whether it’s Al Gore or George W. Bush. And with various senators facing tough re-election campaigns, leaders on Capitol Hill have reason to bend. As a result, the usual horse-trading that goes on behind the scenes of any judicial selection has found an election-year focus. Ironically, the judicial nominees who have been waiting around the longest are least likely to be confirmed. Indeed, of the last 12 judges approved by the Senate, 11 went from nomination to confirmation in under three months. In July three district court candidates from Arizona raced through the process; each was voted out of the Senate Judiciary Committee — just six days after they were nominated. The Senate recessed on July 27 before taking a floor vote, but it’s expected the nominees will be confirmed in the fall. The “last in, first out” trend is driven, at least in part, by the cooperation — or disconnect — between home-state lawmakers of both parties. Recent activity on nominations for judgeships in Michigan, Florida, and Arizona provide a case study. Helene White is a Michigan Court of Appeals judge whom Clinton nominated in early 1997 to fill a spot on the 6th U.S. Circuit Court of Appeals. White’s supporters claim she has waited longer than any candidate in history — 42 months — without getting a hearing from the Senate Judiciary Committee. And it appears that dissonance between the Michigan senators is one of the problems. White is strongly supported by Democratic Sen. Carl Levin. But a spokesman for Republican Sen. Spencer Abraham told The Detroit News that he held up the nomination because the White House didn’t consult him before tapping White. It wasn’t until this past spring that Abraham, a member of the Judiciary Committee who’s facing re-election this November, finally cleared the way to committee hearings for White and another 6th Circuit nominee, Kathleen McRee Lewis. They are still awaiting hearings. Abraham’s office could not be reached for comment. Meanwhile, Florida Sens. Bob Graham, a Democrat, and Connie Mack, a Republican, have won confirmation of six district judges this year — the most of any state. Graham routinely clears judicial picks with Mack. But in 2000, with election-year politics threatening to gum up the process, they have made joint recommendations to the White House, a practice that eased the way for confirmation. In Arizona, where Republicans hold both Senate seats, Sen. Jon Kyl, a member of the Judiciary Committee, and the state’s only Democrat, Rep. Ed Pastor, jointly recommended to the White House three judicial candidates to fill federal trial seats in the state. That cooperation has paid off, with Susan Ritchie Bolton, Mary Helen Murguia, and James Teilborg already on the Senate floor just days after their nominations. Observers expect the three, along with Michael Reagan, a candidate for an Illinois District Court seat whom the committee also moved to the floor on July 27, to get quick confirmation. OLD FAITHFUL Meanwhile, the remaining 31 nominees wonder whether any of them will get through the Senate gantlet at all. Among them are Allen Snyder and Bonnie Campbell, nominees for the D.C. Circuit and the 8th Circuit, respectively. They each had hearings in May, but the committee has not yet voted on them. Democrats have railed on Republicans to move more nominations for the circuit courts, while conservative activists have begged the GOP to stall on the hope of a presidential victory by Texas Gov. George W. Bush. Last month Thomas Jipping of the Free Congress Foundation’s Judicial Selection Monitoring Project sent a letter to Republican senators pointing out that Clinton has appointed nearly as many judges as Ronald Reagan, who — unlike Clinton — had the benefit of six years in which the Senate was controlled by his own party. “Enough is enough,” Jipping wrote. “Mr. Clinton has had, by any objective measure, a very successful run at changing the judiciary and his activists will be serving for many years to come.” Clinton spokesman Elliot Diringer says, “We’ll continue to push hard to win confirmations for our nominees, many of whom have been waiting far too long.” In addition, the president plans to nominate lawyers to fill about 27 more vacancies on the federal bench. Such 11th hour efforts, even in a politically charged election season, might seem futile. But in the intricate politics of judicial nominations, anything is possible. Take the case of Timothy Lewis — whose 1992 nomination to the 3rd Circuit moved with lightning speed. President George Bush, facing a tough re-election vote, tapped Lewis for the 3rd Circuit in September. At the time, the party leadership positions were reversed, with a Democratic-controlled Senate as the gatekeeper for a GOP president’s bench picks. In the case of Lewis, the cooperation of home state senators prevailed. Republican Arlen Specter had recommended Lewis to Bush. The question mark was Sen. Harris Wofford, a Democrat. Today, Wofford, now chief executive officer at the Corporation for National Service, recalls that he could have blocked Lewis. “There was a stickiness that had to be unstuck that late in the year.” But Wofford met Lewis, then a 37-year-old Republican who only 14 months earlier had taken a seat on the U.S. District Court bench in Pittsburgh. Wofford said he was impressed, and he thought it would be important for Lewis, an African-American, to fill the seat being vacated by the court’s only other African-American, the late Judge Leon Higginbotham, who was taking senior status. “We may have been wanting a Democrat at the District Court level,” adds Wofford, “but instead of wheeling and dealing, I went to bat for him.” Lewis was on the bench in 23 days.

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