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As President George W. Bush gets ready to announce his first nominees to the federal bench, his judge-pickers have already realized how difficult the Senate confirmation process can be. Squabbles have broken out over some names that have surfaced, and White House officials are hearing from senators from both parties with complaints, suggestions, and proposals that could ease the way for prospective judges. Indeed, the president’s team is negotiating territory rife with hurt feelings and long memories while pushing to take advantage of the Republicans’ 51-50 edge in the Senate. As with previous administrations, the sticking point has been the White House’s consultation with senators from a potential nominee’s home state — a practice that, if ignored or mishandled, can severely hamper a nominee’s chances. Bush’s team discovered this problem when reporters began inquiring about rumors that California GOP Rep. Christopher Cox was being considered for the 9th U.S. Circuit Court of Appeals. The White House had not informed California Sens. Dianne Feinstein and Barbara Boxer, both Democrats, of the potential nomination when it began fielding calls about Cox from newspapers. According to Feinstein and Boxer staffers, the White House delivered the news while alerting the senators of media inquiries. Boxer, one of the Senate’s staunchest liberals, opposes Cox as too conservative. Feinstein — a member of the Judiciary Committee — refrained from judgment and plans to meet with Cox next week. “At this point,” Feinstein says, “it’s unresolved.” Senate Judiciary Chairman Orrin Hatch, R-Utah, says the White House stumbled with Cox. “That happened before they knew what to do,” he says, adding that the process is now moving smoothly. Deputy White House Counsel Timothy Flanigan responds that the president’s judge-pickers have always been aware of the importance of consulting home-state senators. But now, he says, “we’re adapting to the political realities” in the Senate. The importance was driven home on April 27, when Senate Democrats, led by Patrick Leahy of Vermont and Charles Schumer of New York, sent a letter to White House Counsel Alberto Gonzales reiterating their demands that the administration consider the opinions of home-state senators. Doing so will require the Bush team to step into turf battles that go back years. Take, for example, attempts to fill an opening on the 8th Circuit in Iowa, represented by Sens. Tom Harkin, a Democrat, and Charles Grassley, a Republican. Harkin says he was caught off guard when Grassley announced April 19 that he expected Bush to nominate U.S. District Judge Michael Melloy to the court. “I wasn’t consulted by Senator Grassley and I wasn’t consulted by the White House,” says Harkin. Harkin is particularly galled because President Bill Clinton’s choice for the 8th Circuit, former Iowa state Attorney General Bonnie Campbell, had a nomination hearing last year but never got a vote up or down at the Judiciary Committee. “I don’t know what action I’m going to take yet,” says Harkin. A Grassley spokeswoman responds that neither President Clinton nor Harkin informed Grassley of the nominations of district court Judges Robert Pratt and Mark Bennett — Harkin picks who were both confirmed with Grassley’s support. Grassley learned of Campbell’s nomination only hours before it was made official, the spokeswoman adds. Grassley, a Judiciary Committee member, and Harkin have always supported each other’s picks, the spokeswoman says, “and he expects this practice to continue.” The White House had no response to Harkin’s claim that he wasn’t consulted. But one person familiar with the ongoing process says Bush’s judge-pickers are very aware of the ruffled feathers in the Senate and “are very anxious not to get caught in the middle.” BOYLE AND TROUBLE It may be too late for that, especially when considering a 4th Circuit seat assigned to North Carolina. In 1991, President George Bush nominated U.S. District Judge Terrence Boyle for the appeals court, but his nomination was never voted on in the Democrat-controlled Senate. The seat has remained vacant, as Republican Sen. Jesse Helms blocked President Clinton’s choice — state appeals court Judge James Wynn, who would have been the court’s first black member. Now that a Republican is back in the White House, Boyle’s name has resurfaced — leaving North Carolina Democrat John Edwards on the defensive. Edwards says the White House has contacted him asking his views, but would not elaborate. The loss of Wynn’s nomination still smarting, Edwards adds, “I want to find a constructive way to resolve this.” Meanwhile, Hatch says he is working on a package of 4th Circuit nominations that he hopes will please groups on the left and the right. He would not discuss the details, but published reports of potential nominations from other 4th Circuit states suggest what a plan could look like. The deal could center on Virginia’s Roger Gregory, whom Clinton made the first black judge in the history of the circuit with a controversial recess appointment that expires this year. The state’s two Republican senators, John Warner and George Allen, have urged Bush to make Gregory’s seat permanent. Meanwhile, Peter Keisler, a partner at Sidley & Austin in Washington, D.C., and a member of the conservative Federalist Society, has been recommended for the circuit by moderate Republican Rep. Connie Morella of Maryland. (Keisler is one of five names that a committee appointed by Morella and other members of the Maryland GOP delegation recommended for White House consideration. The others include U.S. District Judges Andre Davis and Benson Legg, Venable partner Roger Titus, and Ronald Rubin of Rubin & Rubin in Rockville, Md.) Maryland’s two Democrat senators, Paul Sarbanes and Barbara Mikulski, could not be reached. Also in the mix would be Boyle and perhaps another North Carolinian, U.S. Magistrate Judge William Webb, an African-American reportedly close to Supreme Court Justice Clarence Thomas. Some Republicans hope the renomination of Gregory would soothe Democrats while several conservative figures join the circuit. It’s unclear whether Bush or Senate Democrats would back such a package. For example, Edwards, who supports Gregory, is not comfortable with that scenario because it does not give him enough of a voice on North Carolina’s nominees, according to a spokesman. REACHING OUT There are signs, however, that the president may make some conciliatory gestures in states with two Democratic senators. Despite the problems with Cox, Feinstein and Boxer have worked out a deal with the White House over how nominees for California’s district courts will be picked. Under the deal, judicial selection committees picked equally by Republicans and either Boxer or Feinstein will forward names to the White House. And two unsuccessful Clinton nominees to the 6th Circuit visited the White House last week, according to a spokeswoman for Sen. Carl Levin, D-Mich. Last year, Michigan appeals court Judge Helene White and Detroit litigator Kathleen McRee Lewis watched their nominations die without a hearing. Levin has said he’d be reluctant to support any other nominee unless White — who waited more than four years for a hearing — and Lewis got a vote at the committee. According to Levin’s spokeswoman, Lewis and White had a meeting at the White House last week, but the spokeswoman did not know what was discussed. White did not return a call. Lewis would neither confirm nor deny any meeting; she said she did not know what the White House’s plans were. The White House also declined comment. While White House lawyers and senators travel Pennsylvania Avenue to work out deals, members of the Senate Judiciary Committee are struggling to avoid parliamentary chaos when the nominations are presented. The committee met in closed session last week to work out a plan for “blue slips,” which traditionally must be signed by the home state senators before a nominee can have a hearing. The meeting, which was scheduled to last 30 minutes, dragged on for two hours. When Sen. Russell Feingold, D-Wis., emerged at one point, he described the talks as “going round and round.” After the meeting, the leaders of the committee offered slightly different versions. Hatch says he plans to follow the practice of former Democratic chairmen Edward Kennedy of Massachusetts and Joseph Biden of Delaware, who gave blue slips great weight but did not let them work as automatic vetoes. Ranking Democrat Leahy took a more combative stance, saying no name should go forward if both senators from the home state disapprove. Leahy has threatened to force the Senate to debate each nominee over the course of several weeks. “You’ve got to have blue slips,” he says, or the White House won’t consult with home-state Democrats. After its early troubles, the White House has changed its consultation procedures, according to one person familiar with the process. At the beginning of the Bush administration, judicial advisers often waited to discuss the nominations with home-state senators until the Federal Bureau of Investigation had completed its background checks. Now, this source adds, all consultations will take place before the FBI starts its work. Those consultations range from a simple phone call to a detailed discussion of any opposition to a certain judicial candidate. Says the source: “They don’t want to send people on suicide missions.”

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