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The coming change in control of the U.S. Senate promises to pop the cork on judicial nominations bottled up by Democrats during the last 15 months, according to Senate staff members and experts in the judicial nominating process. Two whose nominations were considered dead in the water — Charles W. Pickering Sr. and Priscilla R. Owen, both nominated to the 5th U.S. Circuit Court of Appeals — will likely get the floor vote they were denied by the Senate Judiciary Committee earlier this year. With an agreeable Senate, President George W. Bush now will have the chance to push through strict timetables that he claims will end ideologically-driven foot-dragging in the appointments process once and for all, whether the Senate is controlled by Republicans or Democrats. Bush can magnify his impact on the ideological makeup of the federal judiciary by acting on a recommendation by the U.S. Judicial Conference to create 10 new circuit court and 44 new district judgeships. Democrats have been supportive of that proposal. For instance, Sen. Dianne Feinstein, D-Calif., pushed for passage of a bill signed by Bush on Nov. 4, creating eight permanent and seven temporary judgeships, in large part to respond to a sharp increase in drug-related prosecutions in border states. (Temporary judgeships are filled by judges who serve for life, but cannot be refilled by the president without congressional authorization.) Whether Democrats will still be supportive of more judgeships without their senatorial veto power remains to be seen. Republican recapture of the Senate will probably not change the way President Bush selects nominees to federal district and circuit courts. From the very start of his administration, Bush has vetted nominees on the basis of ideology, viewing as a mistake his father’s practice of picking candidates unlikely to ruffle congressional feathers, according to Michael Gerhardt, a law professor at the William & Mary School of Law who has written widely on the appointment process. Bush has a “no more Souters” policy, Gerhardt says, referring to the elder Bush’s appointment of Justice David H. Souter to the U.S. Supreme Court in 1990. Souter’s sparse track record dampened Democratic opposition, but also made him unpredictable, and ultimately an ideological disappointment to his Republican sponsors, Gerhardt says. “I don’t think it’s an oversight that when asked about Supreme Court nominations the president says he wants someone in the mold of Clarence Thomas or Antonin Scalia,” he says. BACKLOG David Carle disputes the idea that the Democratic Senate dragged its feet over Bush’s nominations. Carle is press secretary to Sen. Patrick Leahy, D-Vt., who under the Democratically-controlled Senate has been chairman of the judiciary committee, a post that will probably be occupied by Sen. Orrin Hatch, R-Utah, when Congress reconvenes in January. Carle says that the Democratic Senate did more in 15 months than the Republican Senate had done in the previous 30 months. Of the 151 nominees submitted by the president, 103 have been given hearings by the judiciary committee, he says. One hundred nominees have been voted on, with only Pickering and Owen denied a chance to proceed to a floor vote. Eighty nominees were approved by the full Senate. He claims that the Senate leadership tried to schedule votes on some of the remaining nominees in the weeks before the election, but were blocked by Republicans looking for campaign fodder. More disinterested observers give a different story, however. Gerhardt says there is little doubt that the Democrats have delayed acting on nominees they find objectionable on ideological grounds. Among them are Miguel A. Estrada, a Honduran immigrant who is now a partner at Gibson, Dunn & Crutcher, and Michael W. McConnell, a University of Utah law professor. Estrada, though he served as assistant to President Bill Clinton’s solicitor general, has been accused by judiciary committee Democrats of being ideologically driven. McConnell, who is described as “one of America’s most distinguished constitutional law scholars” in a letter signed by hundreds of law professors urging that he be approved for a 10th Circuit judgeship, has drawn controversy over his opposition to abortion and his view that the courts have unduly restricted the role of religion in public life. Both nominations were pending in committee as of election day. Democrats could protest that turnabout is fair play. “There’s no doubt that the Republicans played politics in the confirmation process when they had control of the Senate during the Clinton administration, though not to the same degree,” according to James Lindgren, professor at Northwestern University School of Law. Six days before the election, Bush proposed legislation that would set a timetable for the appointment process: Judges would notify the president of their intent to retire a year in advance; the president would send a nominee to the Senate within 180 days; the judiciary committee would have 90 days to hold a hearing; and the full Senate would then have another 90 days to say yea or nay. Bush renewed his request for the legislation in a Nov. 7 press conference. SKEPTICAL DEMOCRATS Democrats, who originally saw the proposal as electioneering, are no less skeptical in the aftermath of the election. Stephanie Cutter, communications director for Senate Judiciary Committee member Edward M. Kennedy, D-Mass., said that Bush would have no problems getting confirmation of his nominees if he consulted with the Senate and named “moderate, mainstream” candidates. Kennedy has vowed to fight what he views as extremists, but Cutter acknowledged that at this point the only arrow in the Democrats’ quiver may be the filibuster. The controversy will not die down any time soon. In addition to the current 79 vacancies, 21 are expected to open up next year.

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