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Continuing to tinker with the federal judiciary in his administration’s final days, President Bill Clinton has resurrected the nominations of eight lawyers for the appellate bench. The nominees were among 41 Clinton judicial picks whose names were returned by the Senate at the end of last year. If confirmed by the new Senate, which is divided 50-50 between Republicans and Democrats, the eight would fill vacancies considered “judicial emergencies” by the federal Judicial Conference. But because of the unusual circumstances surrounding Wednesday’s nominations, it’s far from clear that any will go any further. The most notable in the group is Richmond, Va., lawyer Roger Gregory. Last week, while Congress was out of session, Clinton named him to the 4th U.S. Circuit Court of Appeals. The controversial recess appointment expires sometime in the fall — at the end of the first session of the 107th Congress. But if confirmed by the Senate, Gregory will have the same lifetime tenure of any Article III judge. While President-elect George W. Bush could withdraw any or all of the eight Clinton nominations, some observers feel that Gregory has the best chance of confirmation since he will soon be sitting on the 4th Circuit. Both Virginia senators, Republican John Warner and his freshman GOP colleague, George Allen, have said they support Gregory. Among Clinton’s eight renominations, Enrique Moreno of El Paso, Texas, is on the other end of the spectrum. Clinton first nominated Moreno for the 5th Circuit in 1999. Last year, Texas Senators Phil Gramm and Kay Bailey Hutchison, both Republicans, announced that they opposed Moreno. They said a committee of Texas lawyers who advise the senators on judicial recommendations had voted 10-5 against Moreno. “Senator Gramm’s views have not changed,” says his press secretary, Larry Neal. One of the other six renominees, Helene White, is a Michigan state court of appeals judge who has waited four years for a seat on the 6th Circuit. The others are James Wynn, a North Carolina appeals judge nominated for the 4th Circuit; Kathleen McCree Lewis, another Michigan lawyer nominated for the 6th Circuit; Bonnie Campbell, a former Iowa attorney general nominated for the 8th Circuit; Barry Goode of California, nominated for the 9th Circuit; and James Duffy of Hawaii, nominated for the 9th Circuit. “The people have a right to expect that judicial emergencies are treated with the urgency they demand,” Clinton said in a release announcing the renominations. The Judicial Conference of the United States, the panel that governs the administration of the federal courts, defines a judicial emergency generally as any seat open more than 18 months on especially busy courts. Until Bush is inaugurated on Jan. 20, the Senate is nominally controlled by the Democrats, since Vice President Al Gore can break any ties. But the highest-ranking Democrat on the Judiciary Committee, Vermont Sen. Patrick Leahy, has said he does not plan to try to push the nominations out of committee and toward a 51-50 floor vote. When he takes office, Bush can withdraw the renominations and replace them with his own picks. The Bush transition team was not commenting on the matter Thursday. C. Boyden Gray, who served Bush’s father as White House counsel, says the new president ought to be able to make his own judicial picks. “It’s some trouble” to withdraw Clinton’s nominees, Gray acknowledged, “because he has to do it.” President-elect Bush will have plenty of seats to fill. In addition to the eight seats that Clinton has highlighted already, about 70 judgeships on the federal trial and appeals courts sit vacant. Gray notes that former President Bush did not renominate any judicial picks in his final days in office, even though the Democratic Senate had not acted on dozens of his choices. Sheldon Goldman, a University of Massachusetts professor who has written on federal judicial selection, points out that other outgoing presidents have made judicial nominations in their final days with varying success. In 1961, Goldman said, President John Kennedy did not withdraw any late nominations made by outgoing President Dwight Eisenhower. In 1969, however, only a handful of former President Lyndon Johnson’s choices made it past new President Richard Nixon.

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