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For the past two years, judicial nominees Jeffrey Sutton and Priscilla Owen were on the same track. Both faced what at times seemed like insurmountable political obstacles in their pursuit of seats on the federal appellate bench. Sutton, a Jones Day partner, triggered protests from disability-rights activists and others for his efforts to limit the reach of the Americans with Disabilities Act and other civil rights laws. Owen, a Texas Supreme Court justice, was criticized by women’s and abortion rights groups for opinions in which she voted to deny teen-age girls permission to have an abortion without parental notification. Last week, however, the paths of the two nominees diverged dramatically. On April 29, the Senate confirmed Sutton for a seat on the Cincinnati-based 6th U.S. Circuit Court of Appeals. Two days later, Senate Democrats launched a filibuster against Owen, who is up for a seat on the New Orleans-based 5th Circuit. To be sure, the Democrats couldn’t filibuster all of President George W. Bush’s conservative appeals court nominees. But why some and not others? Theories abound, but a common view among Republicans is that nominees are being shut down or moved ahead not only because of their credentials or their views, but also based on whether Democrats and liberals see them as prospective candidates for the high court. Says one Republican lawyer familiar with the nominations process: “You have to look at who the Democrats are targeting through the lens of possible future Supreme Court nominations. The Democrats will simply filibuster those who they think are the most likely future nominees to the Supreme Court.” Owen joined D.C. Circuit nominee and Gibson, Dunn & Crutcher partner Miguel Estrada as the target of a Democratic filibuster. Since it’s widely believed that the president plans to appoint minorities and women to the high court, this GOP lawyer says, Democrats are trying to stop high-profile choices such as Estrada and Owen at the appeals court stage. White males such as Sutton, who are deemed less likely picks, get a wider berth. “Otherwise, it’s very difficult to understand why Miguel Estrada and Priscilla Owen would be filibustered and not Jeff Sutton,” this lawyer says. A Senate Republican aide puts it more bluntly: “There is a conservative minority litmus test.” “Owen and Estrada are outstanding conservatives who are female or Hispanic, and the Democrats feel threatened by these people,” says this source. “Democrats know that Owen is a pre-eminent professional, and they do not want to see her progress up the ladder. Plus, Owen is a Texan and a friend of Karl Rove, and it doesn’t hurt to embarrass the president with a home-state nominee.” Advocates who lobby against Bush nominees disagree with this analysis and put forth their own reasons. Many liberal activists who are close to key Democratic senators have concluded that the main reason that Sutton passed muster was the surprising support that he received from Sen. Dianne Feinstein of California, a Judiciary Committee member and respected Democratic moderate. Says Elliot Mincberg, legal director of People for the American Way, a liberal advocacy group: “As far as we are concerned, Sutton is as dangerous as Owen, if not more so. But he got the vote of Dianne Feinstein, so there was not the willingness in this instance” to filibuster. Mincberg says he is “extremely disappointed” that Sutton was confirmed rather than blocked by the Democrats. “It was a major mistake for the Senate,” he says. Mincberg adds that to effectively sustain a filibuster, Democrats need to muster unanimous opposition to the nominee among their members in the Judiciary Committee. That occurred in the cases of Estrada and Owen, who were approved by the committee through party-line 10-9 tallies. But it was not true with D.C. Circuit nominee John Roberts Jr., who gained the votes of four panel Democrats, or with 6th Circuit pick Deborah Cook, who got three, or, of course, with Sutton. Jim Ward, president of the National Coalition for Disability Rights and a leading anti-Sutton activist, agrees that Feinstein’s “vote in committee prevented any chance of a filibuster.” “I think Sutton suckered [Feinstein],” Ward says. “He ran from his history of activism. He misled senators by saying he could have argued either side of these disability-rights cases.” Feinstein spokesman Howard Gantman says the California senator became convinced at Sutton’s hearing that the Ohioan “could show fairness as a judge” and was not an ideologue. In a Feb. 10 floor statement, Feinstein said, “Mr. Sutton at his hearing answered every question put to him intelligently … and I thought forthrightly. So I could tell how he would act as an appellate court judge. The committee was able to gauge his intelligence, his manner of thinking, and we can use that back-and-forth to help us predict whether Mr. Sutton would be a good and fair judge.” Another theory — one that is offered up by some liberals and some conservatives — is that senators are more willing to launch a filibuster when they feel snubbed by the White House or a nominee. This theory explains the Owen filibuster and makes 5th Circuit nominee Charles Pickering Sr. ripe for one as well: Senators resent the president for renominating them despite their defeat last year at the hands of a Democrat-run Judiciary Committee. Similarly, since the Estrada fight centers in part on Democrats’ demands for the nominee’s memorandums from his years in the solicitor general’s office, some Democratic senators don’t want to back away from a showdown with the White House over their right to the documents. ROBERTS’ FINAL HURDLE? In an unusual, repeat performance before the Senate Judiciary Committee, Hogan & Hartson partner John Roberts Jr. appeared to surmount the final hurdle to his confirmation for a slot on the U.S. Court of Appeals for the D.C. Circuit. Senate leaders agreed to hold a second hearing on Roberts after Democrats complained that a marathon January session — involving two other nominees — didn’t give them enough time for questions. At the most recent two-hour hearing, on April 30, Democratic senators tried to gain assurances from Roberts that he is no conservative ideologue. Sen. Edward Kennedy, D-Mass., told Roberts that “no doubt the president was told that your decisions would be pleasing to him.” He noted that President Bush has said he admires Justices Antonin Scalia and Clarence Thomas. Roberts replied that he would adhere to Supreme Court precedent and would not “follow those two justices if they are in the minority.” “My practice has not been ideological in any sense,” said Roberts, who heads the appellate group at Hogan. “I’ve argued in favor of antitrust enforcement and in favor of affirmative action, but I have also argued cases against affirmative action and against antitrust enforcement.” Sen. Charles Schumer, D-N.Y., excoriated Roberts for his refusal earlier this year to specify in writing three Supreme Court cases with which he disagreed. “Many judge nominees have answered this question without violating the canons of ethics,” Schumer said. Roberts replied that although he “wanted to be responsive,” answering “would harm the federal courts as an institution” since future litigants might claim that he harbored a bias against them. “You’re making this an absurd process, sir,” Schumer replied. “If you say you can’t answer, you’re making this an impossible process.” After nearly 30 minutes of sparring between Schumer and Roberts, Chairman Orrin Hatch, R-Utah, interjected, “Sen. Schumer usually asks good questions. But I know dumb-ass questions when I see dumb-ass questions.” The hearing adjourned minutes later. Roberts, who cleared the committee during his first go-round, is on the panel’s agenda for a new vote on Thursday, with a floor vote expected a week later. MARYLAND CRABS In nominating Claude Allen, deputy secretary of the Department of Health and Human Services, for the 4th U.S. Circuit Court of Appeals last week, President Bush decided to pick a Virginian for a post that has traditionally been filled by a Maryland resident. In an April 23 letter to six senators, White House Counsel Alberto Gonzales framed the issue as one of fairness. Based on its population and caseload, Gonzales wrote, Virginia was more entitled to the seat, one of 15 authorized for that court, than was Maryland. But a prominent GOP attorney gives a different reason. The administration took the unusual step of moving a judgeship because it was frustrated with the “torpedoing” of the candidacies of several Maryland lawyers by the state’s two Democratic senators, Paul Sarbanes and Barbara Mikulski. In 2001, the Maryland senators vetoed the nomination of Peter Keisler, a former Sidley Austin Brown & Wood partner who is now a Justice Department official. Other possible nominees have also been vetoed, this attorney says. Whatever the reason for the move, Sarbanes and Mikulski are unhappy. “The seat for which Claude Allen is nominated is traditionally a Maryland seat,” Mikulski said in a statement. “My priority now is making sure Marylanders are fully and fairly represented on the 4th Circuit.”

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