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By almost any measure, August is more pleasant in Vermont’s Green Mountains than in the swampy heat of the nation’s capital. Still, Democratic Sen. Patrick Leahy left his Vermont farm last month to get started on what promises to be a tense season in the judicial confirmation process. The Senate Judiciary Committee chairman called two nominations hearings in the dog days — at the first, he was the only senator present. Leahy used the second hearing to defend himself in the debate over which party is the most slow-footed on judicial nominations. Reeling off dates and numbers, Leahy said the Senate is “ahead of the pace” this year on moving court of appeals judges. Sen. Mike DeWine, R-Ohio, responded, “I’m not going to get into a statistical battle.” With a knowing smile, he added, “I know you and I will have further discussions on this.” The exchange was telling because, behind the posturing, the process of confirming judges for the federal bench this year will turn — as ever — on a power struggle between the Democratic majority and the White House and its GOP allies in the Senate. Both the Bush administration and Leahy have moved quickly into position. President George W. Bush has made 48 judicial nominations, and administration officials and GOP senators have called for all to be voted on before the Senate adjourns in a few months. Meanwhile, Leahy has shepherded four nominees to confirmation in the short time he has been committee chair and held hearings on three more. But while moving forward on nominees that have drawn no controversy, Leahy and other players have taken their positions on the nominations that promise a fight. In August, Leahy said the White House should consider offering Senate Democrats the same deference that former GOP Sen. Slade Gorton wrested from President Bill Clinton. Such a move could give Democratic senators greater power to block Bush nominees to several key circuit court seats. In a famous 1997 deal, Gorton, then the senior senator from Washington state, muscled into the usual arrangement that grants senators from the same party as the White House the authority to help select judicial nominees. Though Sen. Patty Murray, a Democrat, nominally had the president’s ear, Gorton was able to hold up the nomination of William Fletcher, a California-based nominee to the 9th U.S. Circuit Court of Appeals, until Clinton also named a 9th Circuit judge in Washington whom Gorton liked. Now, President Bush finds himself in a similar standoff with Michigan’s two Democratic senators: Carl Levin and Debbie Stabenow. Levin and Stabenow have asked Leahy to hold up action on all nominees to the 6th Circuit because they want Bush to renominate two failed Clinton nominees from Michigan, State Court of Appeals Judge Helene White and Detroit litigator Kathleen McRee Lewis. Bush’s two 6th Circuit nominees from Ohio — states’ rights expert Jeffrey Sutton and state supreme court Justice Deborah Cook — have been pending since May. The Cincinnati-based 6th Circuit covers Michigan, Ohio, Kentucky, and Tennessee. Seven of the court’s 16 seats are vacant, and another will open up at the end of the year. Leahy spokesman David Carle says that, despite the entreaty from the Michigan delegation, the chairman won’t stop action on any nomination. However, Carle also says the Michigan matter is unresolved. At an Aug. 27 judicial nominations hearing, Leahy said, “We’re trying to follow the same rule” suggested by Gorton’s deal, which ultimately collapsed when Gorton’s handpicked nominee withdrew for personal reasons. Leahy added, “The White House should consult with senators in the area” covered by a circuit court, not just senators from a nominee’s home state. That notion does not please the White House. Administration officials and GOP senators have already been locked in battle with Leahy on the power of home state senators to nix judicial nominees, and White House Counsel Alberto Gonzales says that the disputed power of home-state senators certainly should not be expanded to senators from all states within a circuit. “There’s no reason this White House should be expected to do that,” says Gonzales. He acknowledges that previous presidents have occasionally consulted with senators from neighboring states in a given circuit when considering appellate nominees, but adds that this has never been the consistent precedent. In an Aug. 17 letter to Leahy, Gonzales argued that granting the Levin-Stabenow request would “distort the Senate’s exercise of its advice and consent function by institutionalizing a practice whereby well-qualified nominees may be held hostage to the non-germane demands of individual Senators from other states.” Gonzales and Leahy held a previously scheduled meeting in Leahy’s office on Aug. 27. Neither would discuss the details of the meeting. Meanwhile, Leahy used the hearings in August — when three Bush judicial nominees experienced very mild, upbeat screenings — as evidence that he is trying in good faith to confirm nominees quickly. “I am attempting to go the extra mile to help fill the vacancies on the federal courts with qualified, consensus nominees,” Leahy said. The key word, though, is consensus. Of the four Bush picks confirmed by the full Senate this year, three were jointly recommended by Republican and Democratic senators from the nominee’s home state. The fourth, Judge Roger Gregory of the 4th Circuit, was originally chosen by Clinton and was backed by Virginia’s two Republican senators. Likewise, the nominees who had hearings last month — Sharon Prost for the Federal Circuit; Terry Wooten for a district court seat in South Carolina; and Reggie Walton for the District Court in Washington, D.C. — had support from both Democrats and Republicans. Except for Gregory, Leahy has not scheduled hearings for any of the 11 circuit court nominees Bush unveiled at a White House event in May — several of whom have generated a loud outcry from the left. Among them are Sutton from the 6th Circuit, Michael McConnell from the 10th Circuit, and D.C. Circuit nominees John Roberts Jr. and Miguel Estrada. Leahy has not announced when the next hearing will be or who will be on the agenda. But today, Judiciary Committee member Sen. Charles Schumer, D-N.Y., will hold the second of his subcommittee hearings looking at the Senate confirmation process — hearings that Republicans argue merely provide academic cover for blocking nominees and take time away from confirmation hearings. The process of filling seats on the courts has grown increasingly contentious since Robert Bork’s nomination to the Supreme Court failed in 1987. Fights over legal ideology, Senate process, and political payback have become routine, even in a year when Bush has pledged to soften the harsh tones of partisanship. Gilbert Merritt, a Nashville-based senior judge on the 6th Circuit, says he hopes Leahy can break the syndrome that has plagued the circuit’s nominations. But he’s not hopeful. “What they really need between the White House and the Senate Judiciary Committee is a mediator,” says Merritt, a 1977 appointee of President Jimmy Carter. The vacancies present a problem for the court, says Merritt, who was the 6th Circuit’s chief judge for seven years and took senior status in January. “You obviously have to give the cases shorter shrift,” he says. “The quality [of the written decisions] goes down as well.” When Michigan nominees White and Lewis were stuck in the Judiciary Committee, then under the control of Sen. Orrin Hatch, R-Utah, Merritt wrote the Senate to ask that the pair get up-or-down votes so as to either confirm them or open the process to nominees who could get confirmed. He says the same should occur today with Sutton and Cook. “They ought to vote on whoever’s up there,” says Merritt. SCHUMER’S BRIEF Although he’s been in the Senate for less than three years, Charles Schumer of New York is rapidly emerging as one of the Democrats’ key assets in the escalating battle over President Bush’s judicial nominations. When the Democrats took control of the Senate earlier this summer, Schumer, a plainspoken first-termer, became chairman of the Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts. The panel had been relatively quiet under its previous chairman, Jeff Sessions, R-Ala., but that was to change quickly. On June 26, Schumer brought blue-ribbon witnesses such as Harvard Law Professor Laurence Tribe and former White House Counsel C. Boyden Gray before his subcommittee in a frank discussion of the role of ideology in federal judicial selection. Schumer was open about his views — that ideology should count, and that in reaching their views about judges, senators should acknowledge that ideology matters. This was the first Senate hearing on the broad issues surrounding the confirmation process in at least a decade — and it was also the kickoff of a three-part series that is set to resume now that Congress is back from recess. Part two of the Schumer extravaganza is slated for today. Schumer has dubbed this week’s hearing “The Senate’s Role in the Nomination and Confirmation Process: Whose Burden?” Likely witnesses for the Senate majority include former Sen. Paul Simon, D-Ill., Georgetown University Law Center Professor Mark Tushnet, University of Texas School of Law Professor Sanford Levinson, and Yale Law School professor Judith Resnik. Republicans will likely call University of Illinois College of Law Professor Ronald Rotunda, Catholic University Columbus School of Law Dean Douglas Kmiec, and John Schmitz, former deputy White House counsel under the elder Bush. The third installment, which will focus on the current Supreme Court’s “conservative judicial activism,” is expected to take place late this month. Schumer’s motives in deciding to step forward on the complicated nominations issue have sparked a fair amount of speculation in legal circles. Some say the senator, who has never shied from the press, is trying to steal a publicity beat from his state’s junior senator, Hillary Rodham Clinton. Some say conservative Bush judges are a politically potent issue in liberal New York. A GOP Senate staffer offers a more nuanced reason: “Our understanding is that [Judiciary Chairman Patrick] Leahy wanted him as his deputy on nominees, much as [former Chairman Joseph] Biden [Jr.] had used Leahy. If you’re going to want to get someone out there to punch at nominees, Schumer has built-in credibility, and that way, Leahy can stay above the fray.” This staffer explains that Schumer, 50, is good for that attack role because he’s considered a moderate rather than an out-and-out partisan — and because he plays well on camera. Schumer spokesman Bradley Tusk downplays this theory. He says the senator is interested in Bush’s judges primarily because he wants to improve the federal courts. “This is his passion,” Tusk says. “As an attorney who thinks in a legal way, he’s very interested in crime issues, for example. He ran the crime subcommittee in the House before he was a senator. All his background and his work to date make this a natural next step. He’s been working towards this for 30 years.” A Judiciary Committee aide says Schumer and Leahy did not sit down and work out a plan for the first-termer to assume any specific stance on judicial nominations. But an upfront Schumer role “may be something that results” from the personalities and politics of the judiciary panel, this staffer says. “Schumer is a New Yorker who calls it the way it is,” says the staffer. “He was very bothered, for example, by the fact that no one ever talked about [a prospective judge's] ideology.” “People may perceive him as an attack dog,” the staffer continues, “but it will never be personal.” Leahy spokesman David Carle says, “As in the past, there is such a big workload involved in judicial nominations that Chairman Leahy, as earlier chairmen have done, is distributing the workload among several senators, and Sen. Schumer has picked up some of it.” – Jonathan Groner THREE-WAY SPLIT Paul Cassell, the University of Utah law professor who in 2000 led an unsuccessful challenge of the landmark Miranda v. Arizona decision, has received an odd three-way split rating from the American Bar Association’s Standing Committee on the Federal Judiciary. Last month, the group announced that a “substantial majority” of the 14-member committee found Cassell “well qualified” for a district court judgeship in Utah. A minority of the committee found Cassell merely “qualified,” while another minority found Cassell “not qualified.” The ABA defines “substantial majority” as 10 or more members of the committee. Since the committee doesn’t reveal exact votes, it’s not clear how many members registered less than the highest opinion. The ABA has an obligation to be forthright and explain this decision,” said Assistant Attorney General Viet Dinh, who handles judicial nominations for the Justice Department. Of the 28 Bush nominees so far rated by the ABA, Cassell is only the second to get a negative vote. Nonetheless, Dinh said “the inexplicable inconsistency” of Cassell’s evaluation “suggests that something is awry with the committee’s ratings process.” In March, the Bush administration ended a 50-year tradition of giving the ABA a special role in working closely with the administration in rating potential nominees. But after the Democrats took control of the Senate, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., revived the group’s role by saying the committee would look closely at ABA ratings. Roscoe Trimmier Jr. of Boston’s Ropes & Gray chairs the ABA committee. He says the process is “inherently subjective,” given that they do not use a scorecard when evaluating a nominee’s integrity, judicial temperament, and professional competence. “That’s why we have a committee,” so the evaluation is based on more than one person’s view. – Jonathan Ringel

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