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Two dozen of President George W. Bush’s otherwise noncontroversial choices for federal judgeships have stalled just short of a Senate vote — hostages to an ongoing dispute between the White House and Senate Minority Leader Tom Daschle, D-S.D. Daschle, as leader of the Senate Democrats, is now refusing to permit floor votes on any judicial nominees, even those who have gotten past the Judiciary Committee without difficulty and would probably be approved overwhelmingly by the Senate. The minority leader says his actions are a protest against the administration’s decision to give recess appointments earlier this year to two hotly contested picks for the appellate bench — Charles Pickering Sr. for the 5th U.S. Circuit Court of Appeals and William Pryor Jr. for the 11th Circuit. Daschle also objects to what he sees as the White House’s failure to cooperate with Democrats in nominating people for traditionally Democratic slots on executive-branch boards and commissions, such as the Corporation for Public Broadcasting or the Commodity Futures Trading Commission. “It’s unprecedented to hold up this many nominees to the boards and commissions,” says Daschle spokeswoman Sarah Feinberg. “As long as the White House is holding them up, Senator Daschle has said he won’t allow any nominees through.” The stalemate marks a new turn in the highly politicized judicial nominations process. For more than a year, a feud over the nominees themselves, and Democratic filibusters in the Senate, snagged six Bush picks, including Pickering and Pryor. The current situation is less dramatic, but has still kept five prospective circuit judges and about 20 district court picks from taking the bench this year. It works very simply: Daschle has told Majority Leader Bill Frist, R-Tenn., that if Frist tries to put a nominee on the calendar, Daschle will object. The majority and minority leaders together set the agenda for the Senate floor, and if one of them objects, a matter does not go forward. Republicans are vocally complaining about what they see as Democratic foot-dragging. “The entire Senate executive calendar appears to be stalled … .This situation is serious,” says Margarita Tapia, a spokeswoman for Senate Judiciary Chairman Orrin Hatch, R-Utah. “We cannot continue in this escalating cycle of destructive politicization of the judiciary and the confirmation process.” Among the nominees who have gotten dragged back is Judith Herrera, 50, who was nominated for a slot as a district judge in New Mexico last September and voted out of the Judiciary Committee by unanimous consent on March 4. That district has been declared a judicial emergency by the Administrative Office of the U.S. Courts because of the volume of cases filed there. The issue isn’t the qualifications of Herrera, her political views, or her record as a lawyer in Santa Fe. To Daschle, it’s a matter of fair play and of preserving the traditional prerogatives of the minority party. “Whether it is a nomination to a board or a lifetime appointment to the federal bench, we cannot allow the Senate’s role to be disregarded. Once we have confidence that the integrity of this process is restored, Democrats will be accommodating to the White House’s nominations,” Daschle said in a speech on the Senate floor March 26. “We hoped for a different result, but the administration has left us no choice.” ‘POISONED’ PROCESS Daschle also said that recess appointments of rejected nominees “poison the nominations process” and “strike at the heart of the principle of checks and balances.” “This cannot continue,” Daschle said. “What is at stake is the Senate’s obligation to represent the American people and check unrestrained executive power.” Feinberg, the spokeswoman, says there has been “some progress” lately in ongoing talks between Daschle and the White House on the nominations for boards and commissions, but not enough yet to lift the holds. And she claims the White House has done nothing to assure Daschle that it will abandon the use of recess appointments for nominees who were successfully filibustered. Calls to the White House press office seeking comment were not returned. The 25-odd nominees who sailed through Judiciary and are thought to be easily confirmable form a majority of the 47 pending Bush appointees to circuit and district courts. Most of the others are either controversial choices like Brett Kavanaugh, the aide to then-Independent Counsel Kenneth Starr, who had a rancorous hearing on April 27 for a slot on the D.C. Circuit, or nominees who lack the support of their home-state senators. Democrats point out that the vacancy rate in the 877-member federal judiciary is now only about 5 percent, the lowest it has been since 1990, and that 173 Bush nominees have been confirmed — more than were confirmed in the first term of President Ronald Reagan. Furthermore, “a number of these noncontroversial nominations would go through quickly if the administration were to move forward” by cooperating with Daschle, says Elliot Mincberg, legal director of People for the American Way, which opposes several Bush judicial picks. But Republicans note that only four nominees, all of them for the district bench, have been confirmed this year by the Senate. “Even in the first four months of an election year, one would have expected to see at least some judges confirmed,” says Sean Rushton, executive director of the Committee for Justice, which supports Bush’s judicial nominees. “And as we get closer to the election, the process can be expected to slow down even more.”

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