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The judicial nominations battle gave rise to colorful political theater on May 9, with Senate Republicans and Democrats holding hearings, votes and press gatherings to argue their sides of the partisan debate. Republican senators offered familiar broadsides against Democrats for failing to move nominees, adding visual aids, including posters of milk cartons with images of the “missing” judicial candidates. Democrats gave familiar responses. But the one-year anniversary of President George W. Bush’s first 11 judicial nominations ended with the parties no closer to consensus, and with eight of Bush’s most controversial choices seemingly no closer to confirmation. Yet observers of the nominations process — from both parties and from inside and outside government — have formed a fairly consistent assessment of the confirmation chances of each of the eight circuit court nominees. Assistant Attorney General Viet Dinh says the Bush administration remains “very confident that all of these highly qualified men and women will be confirmed by the Senate.” But the politics of each individual nomination are not that straightforward. Interviews with nominations-watchers suggest that a very tough road to confirmation lies before Jeffrey Sutton, a Jones, Day, Reavis & Pogue partner nominated for the 6th U.S. Circuit Court of Appeals, and 4th Circuit nominee Terrence Boyle, a U.S. District judge in North Carolina. Texas Supreme Court Justice and 5th Circuit nominee Priscilla Owen is also likely to face major roadblocks. Thought to be in better shape, though hardly home free, are South Carolina U.S. District Judge Dennis Shedd for the 4th Circuit, University of Utah College of Law professor Michael McConnell for the 10th Circuit, and Ohio Supreme Court Justice Deborah Cook for the 6th Circuit. The fates of the most highly publicized of the eight nominees, Gibson, Dunn & Crutcher partner Miguel Estrada and Hogan & Hartson partner John Roberts Jr., both nominated for the D.C. Circuit, are harder to predict. Three of the original 11 circuit nominees have been confirmed: Roger Gregory in the 4th Circuit, Barrington Parker Jr. in the 2nd Circuit, and Edith Brown Clement in the 5th Circuit. The others have been caught up in the battle that began in earnest when Sen. Jim Jeffords of Vermont abandoned the Republican Party last June and placed the Senate under Democratic control. “These are all superbly qualified, mainstream lawyers who are committed to the principle that judges should follow the law and not make it up from the bench,” said Sen. Orrin Hatch of Utah, the ranking Republican on the Judiciary Committee, at a press conference last week. Democrats and liberal interest groups reply that the nominees are rigid conservatives who require careful scrutiny before they can be approved or have hearings. “This is a group that has advocated what many consider to be extreme positions during their careers: stripping state employees of protection under the Americans with Disabilities Act; arguing that the Supreme Court should overturn Roe v. Wade; opposing the separation of church and state; and interpreting the Voting Rights Act to limit minority representation,” said Judiciary Chairman Patrick Leahy, D-Vt., the same day. Leahy’s comments offer a rough outline of the most intractable problems for some of the judge picks. Sutton, a 41-year-old appellate litigator and former Supreme Court clerk, faces serious issues with the disability community that jeopardize his confirmation. An advocate of the doctrine that Congress possesses only limited power to regulate the states, Sutton argued and won University of Alabama v. Garrett in the Supreme Court last year. The Court ruled that Congress lacks the power to apply the ADA, a law signed by the first President Bush, to state employees. Although Sutton has quietly met with disability-rights leaders to mend fences, his problems on this score do not seem to be dissipating. Sutton declines comment. Another nominee is in trouble for reasons of politics, not ideology. That’s Boyle, the North Carolina trial judge who hasn’t triggered much flak from interest groups, but lacks the support of his home state Democratic senator, John Edwards. The judiciary panel won’t hold a hearing without an approving “blue slip” from the home senator, and there’s no indication that Edwards will change his mind. Boyle declines comment. A third appellate pick who faces high hurdles is Owen, the Texas judge selected for the 5th Circuit. Regarded as intelligent and thoughtful, Owen is nevertheless seen by Democrats and liberals as a member of the conservative wing of an already conservative state supreme court. Many Texas lawyers who represent workers see Owen as reflexively pro-management. Abortion rights groups assail her opinions in a series of cases where she refused to permit teen-age girls to have abortions without parental consent. Owen also faces allegations — hotly disputed by the White House — that she improperly ruled in an Enron Corp. case after accepting campaign contributions from the company. Yet Owen is one of three nominees for whom Leahy has pledged to hold hearings this year. Indications are that the administration would fight hard for her, especially since some Republicans criticized the White House for its somewhat belated efforts to push the failed 5th Circuit bid of Charles Pickering Sr. earlier this year. Owen did not return a call seeking comment. Possibly the easiest path to confirmation of all eight nominees is that of Shedd, a former aide to Sen. Strom Thurmond, R-S.C., who, unlike Boyle, has the support of his home state Democratic senator, in this case Ernest Hollings. This nomination may be the first to move forward. Somewhat surprisingly, McConnell’s chances are also seen as good to excellent. McConnell, an authority on the Constitution’s religion clauses, has a long record of skepticism about the traditional understanding that the First Amendment requires a “high wall of separation” between church and state. Although liberal activists have raised questions about McConnell, he benefits enormously from his endorsements by a wide range of liberal law professors, including Cass Sunstein of Chicago. He’s also one for whom Leahy has promised a hearing, and it’s unlikely that all 10 Judiciary Democrats would reject someone from Sen. Hatch’s home state. Cook, the Ohio judge, is seen in somewhat the same light as Owen, but as less outspoken in her rulings. Liberal groups say she tends to side with big business. Still, Republicans have scored by arguing that the 6th Circuit is operating at half its authorized strength. Democrats may decide that they can oppose only one Ohioan for that court, presumably Sutton. Finally, the chances for Estrada and Roberts for the D.C. Circuit are the hardest to predict. Estrada, but not Roberts, has been pledged a hearing by Leahy. On May 1, five national Latino groups urged that the hearing take place, but said it should be scheduled no sooner than August in order to permit scrutiny of the nominee. After exhaustive research and clear signals that they plan to oppose Estrada, liberal activists seem to have found few specifics that they can use against him. And Republicans know that a televised hearing at which Estrada would describe his origins in Honduras and his rise to partner at a major law firm would give the nomination a huge boost. Still, Estrada’s chances are not assured. Democrats are still upset about the successful GOP stall of two Clinton choices for the D.C. Circuit, and they may want to deny Bush the chance to tilt a bench that routinely handles far-reaching cases with an impact on national policy. The court now has four Republican appointees, four Democrats and four vacancies. Estrada, 40, is still seen as a potential Supreme Court pick for a Republican administration, another fact that makes Democrats nervous. The same arguments apply to Roberts, another D.C. appellate specialist with top credentials and support from liberal lawyers. But Roberts may be in a slightly less advantageous position than Estrada. It is hard to imagine the Senate clearing Roberts without previously approving Estrada, for fear of opening itself up to charges of anti-Hispanic bias. And abortion rights groups note that Roberts, as a government lawyer, signed a brief in 1991 that argued that the Constitution does not provide a fundamental right to abortion.

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