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For the past eight years, Republican senators have played defense, holding the line against alleged judicial activists, liberals, and other undesirable choices for the federal bench. But with the inauguration of President George W. Bush, Republican lawmakers on Capitol Hill will now get to carry the ball for judicial nominees who reflect their party’s conservative values. On the other side, of course, are the Democrats, who will try to use the electoral gains they made in the 107th Congress to force Bush to appoint moderate judges. One of a president’s greatest powers is the prerogative to shape the federal courts — a role underscored by a presidential election effectively decided by one vote in the Supreme Court. To many in the legal community, in fact, the opportunity to regain influence over the courts was what the Bush campaign was all about. And the GOP has plenty to work with — 80 vacant seats on the federal trial and appellate courts, as well as control of the Senate, where nominees are confirmed or rejected. Bush is expected to follow a time-honored custom by looking to Republican senators in states where vacancies exists to suggest names of potential nominees. For the lawmakers, it’s a powerful perk of having their party in the White House. But in the current Washington environment, Bush and the Republicans will need to move swiftly yet carefully in stocking the federal bench. A Senate split 50-50 between the parties means that Democrats will have significant clout over Bush nominees. Under Senate rules, Democrats could filibuster any floor vote on a judicial nominee, and the Republicans would need 60 votes to shut down such a political play. Another scenario involves the Senate splitting along party lines, voting 50-50 on a potential judge — with the Republicans prevailing by way of Vice President Dick Cheney’s tie-breaking vote on the Senate floor. But the Republicans could lose that edge to the Democrats with the death or resignation of a single GOP lawmaker. Republicans could ask none other than outgoing President Bill Clinton about the importance of seizing the Senate majority when you have it. In his first two years in office — the only time when Democrats controlled the Senate — Clinton pushed through 129 judges. That represents more than a third of the 374 federal judges he appointed throughout his eight-year administration. During the remainder of his time in office, Clinton saw a handful of nominees fail while having to make political deals with Republicans to get other judges confirmed. How much of a fight Democrats put up depends on the type of nominees Bush sends to the Senate, says Ronald Klain, a former Clinton administration official who was involved in judicial selection. “The vast majority of these people will get through,” says Klain, now a D.C. partner at Los Angeles-based O’Melveny & Myers and one of Al Gore’s leading legal advisers during the Florida election recount in December. Klain adds, however, that nominees from either extreme of the political spectrum “tend to run into more controversy.” During the campaign, Bush cited conservative Justices Antonin Scalia and Clarence Thomas as the type of jurist he admired. Despite Democrats’ calls for moderate picks, Republicans sound ready to push for some solid conservatives on the bench. “There will be several hundred judges, and they will be from A to Z,” says Sen. Jon Kyl, an Arizona Republican who sits on the Judiciary Committee. Considering the delicate political balance, one Capitol Hill aide who advises a Republican senator on judicial nominations, says, “I can’t imagine it’s going to be pretty.” KEEPING SCORE Republicans are sitting pretty in 18 states where they control both Senate seats. In those instances, the senators typically arrange a way to share the power to recommend judicial nominees. In the 18 states where both senators are Democrats, Bush will be getting advice on potential nominees from a high-ranking Republican House member or the state’s Republican governor. The remaining 14 Senate delegations are split one Republican and one Democrat. Some of the results of the power shifts: � In Iowa, conservative GOP Sen. Charles Grassley has taken the reins of judicial selection from Sen. Tom Harkin, a liberal Democrat. That could dash the hopes of Bonnie Campbell, a former state attorney general whom Clinton tapped for the 8th U.S. Circuit Court of Appeals. The full Senate never voted on Campbell’s nomination, and the seat remains open today. Grassley is now picking three possible 8th Circuit nominees to recommend to Bush. And while Grassley did not object to Campbell’s nomination last time, the senator has not decided whether to proffer her name now that he has the power to choose — instead of to simply object to — potential nominees, according to a Grassley spokeswoman. � In Indiana, Democrat Sen. Evan Bayh is giving way to GOP Sen. Richard Lugar. Lugar has already picked a committee of lawyers, business people, and a minister to recommend nominees for federal judgeships, U.S. attorneys, and federal marshals. � Arizona has two Republican senators-Sen. Kyl and former Bush nemesis John McCain. Last summer, Kyl and Rep. Ed Pastor, the state’s only Democratic member of Congress, made three joint recommendations for the bench, whom Clinton promptly nominated. The nominees won confirmation in the waning days of the 106th Congress. With a Republican in the White House and Republicans in control of the Senate, Kyl notes, judicial selection “will be easier without having to be quite as considerate of the Democratic point of view.” There are three District Court openings in Arizona. � In Texas, where four District Court judgeships and one seat on the 5th Circuit are open, Republican Sen. Phil Gramm expects his longtime judicial selection committee — downgraded to an “advisory group” during the Clinton years — to reassert itself. Despite losing its official status, the 20-member panel, headed by Amarillo businessman and lawyer Wales Madden Jr., still maintained a certain power as advisers to Gramm and fellow Texas Republican Sen. Kay Bailey Hutchison. Last year, Gramm and Hutchison successfully opposed Clinton’s nomination of El Paso attorney Enrique Moreno for a seat on the 5th Circuit — basing their objections on the advisory group’s 10-5 vote against Moreno. � In Democrat-controlled Michigan, a spokesman for GOP Rep. Fred Upton and Republican Gov. George Engler will work together on recommending nominees for the four open federal judicial seats, including three on the 6th Circuit. � In Georgia, GOP Rep. John Linder expects to be Bush’s point man on judicial nominations, according to a spokeswoman. The role of Democratic Sens. Max Cleland and Zell Miller is unclear. � In New York, with two Democratic senators, Republican Rep. Benjamin Gilman, the state’s senior Republican in the House, and GOP Gov. George Pataki expect to make judicial recommendations. DEMOCRATS GET THE BLUES Traditionally, the chairman of the Senate Judiciary Committee will not allow a nomination to go forward unless both home-state senators, regardless of political party, signify their approval on what is known as a blue slip. By refusing to return a blue slip, a Democratic senator could effectively veto a Bush nomination. A spokeswoman for Judiciary Chairman Orrin Hatch, R-Utah, says Hatch will, by tradition, “rely on the views of home-state senators.” But the question remains how often Hatch will be willing to let Democratic blue slips block a nominee. The answer could determine who gets appointed in several big states with all-Democratic Senate delegations. These include California, where eight seats on the federal bench, including two on the 9th Circuit, are empty.

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