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While the events of Sept. 11 abruptly altered Washington policy agendas, the politics over the federal judiciary — for better or worse — have been barely affected. On Thursday the Democrat-controlled Senate Judiciary Committee will host its second nominations hearing since the attacks. Just as before, Judiciary Chairman Patrick Leahy, D-Vt., is favoring those nominees who are not mired in controversy, while administration officials continue to grumble that Leahy’s pace could be faster. To be sure, putting forth a united front to respond to the terrorist attacks has eclipsed any public bickering among key players at the White House, the Justice Department, and the Senate Judiciary Committee. As an example, last week Leahy warmly welcomed John Ashcroft to a hearing on anti-terrorism legislation, despite having been one of 42 Democrats who voted against Ashcroft’s confirmation to be attorney general. But the bipartisan spirit in Congress — which has put off debates on hot-button issues such as campaign finance reform, “faith-based” social programs, and changes in Social Security — has not spilled over into judicial politics. Sheldon Goldman, a University of Massachusetts political science professor who has written extensively on judicial politics, says that right now would be a difficult time to deal with a contentious and ideological nomination. “We’ve got to hope that a Supreme Court justice doesn’t die,” Goldman says. “A vacancy would make bipartisanship very fragile.” Since taking over the Judiciary Committee in June, Leahy has emphasized noncontroversial nominees who enjoy broad support from both Democrats and Republicans. That approach is “all the more important now,” says David Carle, Leahy’s spokesman. “To take a controversial nomination would suck the oxygen out of the process and reduce the number of nominees we can work on.” But one administration official says Leahy let the administration know back in August that consensus nominees would fair better than controversial picks such as Jeffrey Sutton, whom President George W. Bush has selected for a seat on the 6th U.S. Circuit Court of Appeals, or Michael McConnell, whom Bush tapped for the 10th Circuit. President Bush announced both nominees at a White House ceremony in May. “Leahy never had any intention of having hearings on those nominees,” says the official. Accordingly, the administration official figures it is highly unlikely that Sutton, vigorously opposed by disability rights groups, and McConnell, opposed by pro-choice and a church-state separation group, will get a hearing this year. Similarly, D.C. Circuit nominees John Roberts Jr., a Hogan & Hartson partner opposed by abortion rights groups, and Gibson, Dunn & Crutcher’s Miguel Estrada may have to wait until next year as well. Slated for this week’s hearing is New Orleans U.S. District Judge Edith Brown Clement, nominated for the 5th Circuit in May, along with some district court nominees who had not been scheduled by press time. Clement enjoys the support of both home state senators, Democrats John Breaux and Mary Landrieu, a key for Leahy to move forward on any nominee. Under the Democrats’ control, the Senate has confirmed three nominees to the federal courts of appeals and three to district courts. Two more nominees, one each for the trial and appellate courts, are waiting for a vote by the Judiciary Committee. Altogether, 53 Bush nominees are pending, and there are 109 vacancies on the federal courts. White House Counsel Alberto Gonzales pledged over the summer that the administration would nominate close to 100 would-be judges by the end of the year. That effort could be hindered by the terrorism crisis, as resources at the Federal Bureau of Investigation, which conducts background checks, are being diverted to the investigation. One judicial nominee has been affected as well. Nebraska Deputy Attorney General Laurie Smith Camp, nominated for a district court seat, missed her Sept. 13 hearing because flights were still grounded and she could not get to Washington. It is not clear when she will be rescheduled.

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