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In an East Room speech on May 9, President George W. Bush announced his first 11 judicial nominees — all of them selected to fill important seats on federal appeals courts. Over the next eight months, Bush nominated 17 more circuit judges and put forth 36 candidates for spots on federal district courts. By year’s end, six appeals judges and 21 trial judges had been confirmed by the Senate. Those are the basic facts. The raging debate is over what they mean. The Bush administration, backed by Republican senators on the Judiciary Committee, accuses Senate Democrats of bad faith. Bush and his allies are incensed that only three of the original 11 circuit nominees have been seated — and that the other eight haven’t even had a hearing. Republicans concede that the Democrats have moved forward on noncontroversial nominations, mostly for the district courts. But that’s just window dressing, Republicans say, and the majority has no intention of holding hearings on nominees they see as too conservative. On the other side, Judiciary Chairman Patrick Leahy, D-Vt., responds that nominees with an ideological bent need careful scrutiny. By clearing other judges and holding off on the tough ones, the committee is just doing its job. It’s a numbers game; pick a set. On Dec. 13, Leahy said 27 Bush judges had been confirmed by the Senate — as many as were confirmed in 1993, the first year of the Clinton administration. This despite the fact that Leahy only assumed control of the committee after Sen. Jim Jeffords, Ind.-Vt., abandoned the GOP, and that a great deal of time was consumed with anti-terror legislation. Utah Sen. Orrin Hatch, ranking Republican on the Judiciary Committee, had a ready reply. He quickly pointed out that the committee had moved only 21 percent of appellate nominees, a much lower percentage than in President Bill Clinton’s first year. On Dec. 19, Hatch wrote, “What they are not telling the public is that the Senate has purposefully ignored more judicial nominees than in any other president’s first year in office in recent history. Thirty-two of President Bush’s nominees have been prohibited from even having a hearing.” District judges are doing much better than appeals judges. The Senate has confirmed 21 of 36 choices for district courts, but just six of 28 for appeals courts. There’s a reason for this. Liberals argue that because the Supreme Court is taking fewer cases, the appeals courts have become more important. They see nominees such as Michael McConnell for the 10th Circuit and Jeffrey Sutton for the 6th Circuit as particularly ideological. The administration and its supporters agree regarding the significance of circuit court nominees — thus, they argue, bottling up qualified nominees is all the more irresponsible. The D.C. federal courts are a microcosm. Reggie Walton and John Bates were swiftly and unanimously confirmed for the district court, and Richard Leon, a third nominee, should also have smooth sailing. But for the U.S. Court of Appeals for the D.C. Circuit, John Roberts Jr. and Miguel Estrada are among the eight picks from May 9 who haven’t had a hearing. Lately, the politics of the Estrada nomination have become especially heated. On Nov. 28, Sen. Jon Kyl, R-Ariz., accused Democrats of “racially profiling” the nomination by intentionally denying Estrada a hearing because he is Hispanic. Leahy spokesman David Carle replied that this was a “ridiculous assertion.” Last week, People for the American Way, the liberal activist group, cited the Kyl statement as part of a “vicious campaign” by the right wing against Democratic senators. On Nov. 15, all 49 GOP senators wrote a letter to Leahy calling for hearings on Estrada and Roberts. Vice President Dick Cheney sent a “Dear Pat” letter on Dec. 4 specifically mentioning vacancies on the 6th Circuit, Estrada, and Roberts. Going forward, the administration will become more aggressive, says an administration source. “This president tried to turn a new page after the bitterness of the previous administration,” says this source. “But the perception here is that he got nothing at all in return from the Democratic Senate. So we will take a harder line on how our nominees are treated by the Judiciary Committee. Our recourse is to complain, and to complain loudly.”

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