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Despite a spate of recent confirmations, new developments in the struggle over the federal bench are showing just how dysfunctional the process can get. On Thursday, President George W. Bush named three Michigan nominees to the 6th U.S. Circuit Court of Appeals. Michigan is among the states covered by the Cincinnati-based appeals court. Within hours, Michigan’s two Democratic senators had vowed their opposition, which makes it very unlikely the nominees will come up for confirmation hearings without more wrangling. The Michigan problem resembles other circuit court fights that have slowed nominations and confirmations for years. The squabble has its origins in the Clinton administration, when two presidential picks for the circuit waited years without getting hearings from the then-Republican-controlled Senate. Similarly, Bush’s nominee to a North Carolina seat on the Richmond, Va.-based 4th Circuit, federal trial judge Terrence Boyle, is stuck because of a feud that dates back to the first Bush administration, when the same nominee couldn’t get through a Democrat-controlled Senate. “There’s mounting frustration here,” says one Bush administration source, who asked not to be named. During the summer, White House Counsel Alberto Gonzales said he hoped the administration would have named nominees for nearly 100 open seats by the end of the year. But protracted negotiations with home-state senators have slowed the process, says the source, who predicts that it will take at least until January to achieve Gonzales’ stated goal. The terrorism investigation has added to the problems, as FBI turnaround time on background checks has increased from about 28 days to 45 days, says the source. So far, Bush has named 64 nominees, 17 of whom have been confirmed by the Senate. At least 10 could be confirmed in the coming weeks, which would equal the number of judges confirmed by a friendly Democratic Senate in Clinton’s first year. But aides to Senate Judiciary Chairman Patrick Leahy, D-Vt., acknowledge that the confirmed nominees rose to the top of the list because they were largely noncontroversial and supported by both home-state senators, often one Republican and one Democrat. But the list of consensus nominees is running thin, especially for the influential appeals courts. The Michigan situation illustrates the problems that lie ahead. During the Clinton administration, then-Michigan Sen. Spencer Abraham (now secretary of energy) blocked the 6th Circuit nominations of Michigan appeals judge Helene White and Detroit litigator Kathleen McRee Lewis. Clinton officials, Abraham said, had not properly consulted with him. Although the senator released his hold in the spring of 2000, White spent more than four years waiting in vain for a hearing, breaking known Senate records for futility. Michigan Sens. Carl Levin and Debbie Stabenow, both Democrats, have since urged Bush to renominate White and Lewis. Bush officials met with White and Lewis in March, but apparently to no avail. In August, Levin and Stabenow urged Leahy to stop action on all 6th Circuit nominees — the circuit also includes Ohio, Kentucky and Tennessee — until the White-Lewis matter was resolved. Gonzales responded then that the Levin-Stabenow block “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.” Meanwhile, the 6th Circuit continued to lose judges — and is now operating with barely half of its usual complement of 16. Four vacancies come from Michigan. The matter simmered until Nov. 1, when Levin and Stabenow publicly asked Bush to appoint a bipartisan commission to choose nominees. The administration rejected that move and, on Thursday, announced that Bush would nominate three jurists for the 6th Circuit seat: U.S. District Judge David McKeague, Michigan Circuit Judge Susan Neilson and Michigan Court of Appeals Judge Henry Saad. Levin and Stabenow released a statement hours later saying they remained committed to addressing “the unfair treatment” of White and Lewis. “Until that resolution is achieved, we cannot in good conscience consider new nominees,” they said. A Leahy aide reasserts that the committee policy under both Democrat and Republican control has been that both home-state senators must support a nominee before he or she may move forward. Gonzales could not be reached for comment, but the administration source explains the thinking behind the hard stance. Agreeing to Levin and Stabenow’s demands might solve that problem, the source said, but create others. “Nobody’s playing for the short term,” says the source. Making a deal “will get you held up for circuit seats across the country. We’re not in the business of giving away bits of the president’s powers.” Since Democrats took over the Senate last summer, four court of appeals nominees and 13 district court nominees have won confirmation. Another 11 would-be judges have had hearings, and all but one — 5th Circuit nominee Charles Pickering — appear headed for easy confirmation before the Senate adjourns in the coming weeks. But even those nominees are in limbo as Leahy and the White House wrangle over a new committee questionnaire that asks nominees to confess any adult use of illegal drugs and prior arrests and convictions. Some Bush nominees have answered the questions by simply directing senators to their FBI reports. Leahy said at a Nov. 8 meeting that four nominees who had hearings Oct. 25 had not yet been scheduled for committee votes because aides were still waiting for full responses to their questionnaires. An administration official says that the new questions are covered in FBI background checks, and the senate’s additional question is a likely source of leaks and attempts to embarrass nominees. A Leahy aide argues the questions are reasonable and similar to what other committees ask nominees under their review.

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