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The presidential race may have remained undecided Wednesday, but clarity began to emerge in isolated parts of the elected and appointed government. For instance, the remaining pieces of the next U.S. Senate started falling into place, shedding some light on how the next crop of federal judges will be chosen. By late afternoon, Republicans had confirmed their continued, but razor-thin, control of the Senate. Regardless of who takes the White House, the GOP can fare no worse in its influence over the federal judiciary than it has in the Clinton era. The gridlocked combination of a Democratic president and GOP Senate managed to seat 244 judges during the past six years. During the first two years of President Bill Clinton’s administration, when the Democrats controlled the Senate, 129 judges were confirmed. If Republican nominee George W. Bush wins the presidency, Clinton’s 1993-94 judicial record would bode well for would-be judges in the mold of Justices Antonin Scalia and Clarence Thomas. Bush has cited the two most conservative members of the Supreme Court as his judicial models. But just as Clinton appointed a generally moderate group of judges, one might expect Bush to have to make some compromises as well. “It’ll still be difficult to get judges in,” says a former staffer to Sen. Arlen Specter, R-Pa., noting that the Democrats have eight more senators than necessary to filibuster and indefinitely shut down Senate action while fighting a Bush nominee. Bush has said he’d press the Senate to act on his nominees within 60 days. According to the Alliance for Justice, a liberal legal policy group, Clinton nominees who were confirmed in 1999 had to wait well over 150 days. Currently, there are 63 vacancies in the federal judiciary, 23 in the appeals courts, and 40 in the district courts. Tuesday’s election removed two Republican members of the Judiciary Committee — the first legislative hurdle for judicial nominees. In Michigan, Sen. Spencer Abraham lost to Debbie Stabenow, a Democratic member of the House of Representatives. Abraham’s loss was close but no rival for the strange background of Sen. John Ashcroft’s ouster in Missouri. Ashcroft was outpolled by the late Gov. Mel Carnahan, killed in a plane crash last month. And after speculation Wednesday that the election result could end up in court, Ashcroft announced that he would not bring a challenge, clearing the way for Carnahan’s Democratic successor, Roger Wilson, to name Carnahan’s widow, Jean, to the Senate seat. “I know there are some serious constitutional issues surrounding this election, Ashcroft said. But, he added, “The will of the people has been expressed.” GOP activists had vehemently protested a St. Louis judge’s decision to extend voting in the Democratic-leaning city Tuesday night, while others pointed to Article I, Section 3 of the U.S. Constitution to argue why Ashcroft was the rightful winner. The section states that “No Person shall be a Senator who … shall not, when elected, be an Inhabitant of that State for which he shall be chosen.” One Washington insider not involved in the Missouri race said he saw a possible avenue of litigation. “I’d argue Carnahan isn’t an inhabitant of anything,” said Theodore Olson, a former Reagan Justice Department official and Supreme Court advocate at the D.C. office of Gibson, Dunn & Crutcher. Despite Ashcroft’s loss, Republicans held on to power in the Senate, but by the slimmest of margins. If Sen. Slade Gorton remains ahead of Democratic challenger Maria Cantwell in a tight Washington state race — which still was too close to call as of Wednesday afternoon — the GOP would have at least a 51-49 majority. (If Vice President Al Gore wins the presidency, Sen. Joe Lieberman would leave the Senate for the vice presidency; Connecticut’s Republican governor, John Rowland, would likely pick a GOP replacement.) The loss of Ashcroft and two other GOP senators also set off a game a musical chairmanships in the Senate Judiciary Committee. It starts with Sen. William Roth in Delaware, who was unseated by Democrat Tom Carper. Roth chaired the powerful Senate Finance Committee, a spot now likely to be filled by Sen. Charles Grassley, R-Iowa, the second-highest ranking GOP member on the committee. A move by Grassley to head up Finance would force him to give up his chairmanship of the Judiciary subcommittee that oversees the federal courts. In his tenure, Grassley watched over the courts with a critical eye, holding hearings for each judicial circuit on how many judges each needed. It’s unclear who would take over the courts panel, since Sens. Strom Thurmond, R-S.C., and Jeff Sessions, R-Ala., already chair other Judiciary subcommittees. Abraham’s loss opens the chairmanship of Judiciary Immigration Subcommittee. Ashcroft’s loss opens up the lead spot on the Constitution, Federalism, and Property Rights panel. It might make sense for Sen. Jon Kyl of Arizona to take over the Immigration panel, since his state borders Mexico, but he would have to give up his chair of the Technology, Terrorism and Government Information subcommittee. It’s also possible that a Senate freshman, such as Virginia’s senator-elect, George Allen, a partner at McGuireWoods, could join Judiciary and take over a subcommittee. On the other side of the Capitol, Republicans held on to power in the House of Representatives, but there will be some new faces at the House Judiciary Committee anyway. Rep. Henry Hyde, R-Ill., will likely hand over the chairmanship to Rep. James Sensenbrenner, R-Wis. Hyde didn’t lose a re-election bid, but the GOP’s own rules limiting committee chairmen to three terms will oust him from the top spot. Sensenbrenner was chairman of the House Science Committee and is one of Congress’ millionaires, worth a reported $10 million. His great-grandfather founded the Kimberly-Clark Corp., the paper products giant.

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