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Perhaps the yuletide spirit had not yet hit President George W. Bush. But his Dec. 23 decision to renominate 12 contentious appeals court candidates, announced on the White House Web site next to messages on Christmas and Kwanzaa, was clearly not designed to foster good will — at least among Senate Democrats. Four seats weaker after the November elections, the Democratic caucus was immediately thrown on the defensive, and the die seemed instantly cast for a repeat of the last Congress, when 10 Bush circuit court nominees were filibustered. While it might seem that the same slate of nominees will mean the same stalemates and the same tired complaints from each side of the aisle, there are fissures beneath the surface that could open the logjam for at least a few of the nominees. A relatively simple compromise could be brokered with the White House that could free up as many as four judges on the 6th U.S. Circuit Court of Appeals. And a few other judges might get a pass if Democrats get something worthwhile in return. In addition, there is the new chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa., who says that he wants to bring his Democratic colleagues into the nominations process. “I plan to give more input and consultation with the Democrats so they can be involved in a lot of these decisions,” Specter says. “Eliminating judicial gridlock is going to be a big job and a very important job. “I don’t have any problems with any of the nominees,” he adds. But Democrats do, especially in the all-important U.S. Court of Appeals for the D.C. Circuit — a frequent stepping-stone to the Supreme Court — where the three current nominees all swing hard to the right, and one, former Senate Legal Counsel Thomas Griffith, faces the embarrassing problem of not paying his bar dues in the District and failing to join the bar in Utah after he took a job as Brigham Young University’s general counsel. WAR GAMES Republicans, of course, have railed mightily against the judicial filibuster, and in a Jan. 4 floor speech, Senate Majority Leader Bill Frist, R-Tenn., effectively threatened to stop the tactic with a rare parliamentary maneuver if it continues. Still, Democrats are hardly backing down, telling anyone who will listen that blocking a nominee in committee, as former Judiciary Chairman Orrin Hatch, R-Utah, did dozens of times during the Clinton years, and blocking a nominee on the floor with a filibuster are mere differences of style, not substance. If Frist is able to carry out his threat — called by Democrats the “nuclear” option and by Republicans the less incendiary “constitutional” option — then almost any White House judicial nominee should sail easily through. But that move is fraught with problems. The beauty of the nuclear option, from the Republicans’ point of view, is that it can be accomplished with just 51 votes. The problem is that it could set off a chain reaction from Democrats, who could refuse to agree to the dozens of unanimous consent requests the Senate uses to transact routine business. “Harry Reid has been very clear and on the record,” says Phil Singer, spokesperson for the Senate minority leader. “He will tie the Senate up in knots if the Republicans move forward with this drastic, extreme measure.” There’s another problem from the GOP’s perspective: Despite the 55 Senate seats Republicans now hold following the November election, it’s not at all certain whether Senate Majority Leader Frist could muster the votes. Sens. John McCain, R-Ariz., Olympia Snowe, R-Maine, Chuck Hagel, R-Neb., and possibly two or three other moderate Republicans, and a couple of the Senate’s older members, like Sen. John Warner, R-Va., have serious reservations about eliminating the minority party’s biggest single piece of leverage. “A truly conservative senator is not going to vote for the nuclear option,” notes University of Massachusetts professor Sheldon Goldman, an expert on judicial nominations. “This is a tradition. Unrestricted debate is part of the unwritten Constitution.” Experts on Senate procedure, such as Covington & Burling partner Martin Gold, warn of dire consequences if the option is exercised. “You have the possibility of a serious confrontation between the parties on a matter of tremendous political and legal import,” says Gold, who was Frist’s floor counsel in 2003. “There are probably bigger questions to be presented. But I can’t think of any.” Asked his views on the nuclear option, Specter says, without elaborating, “It’s very important to avoid [that] vote.” MOVEMENT FROM MICHIGAN Despite the seemingly intractable stances of both sides, there are still individual compromises that could be reached that give each side a face-saving way of moving forward. The best hope for making a deal lies in the 6th Circuit, which hears appeals out of Kentucky, Ohio, Tennessee and Michigan. Four 6th Circuit nominees — Richard Griffin, David McKeague, Susan Bieke Neilson and Henry Saad — are being held up by Michigan’s Democratic senators, Carl Levin and Debbie Stabenow. Their objections stretch back to the Clinton administration, when two circuit court nominees from Michigan — Michigan Court of Appeals Judge Helene White and Detroit lawyer Kathleen McCree Lewis — were denied Senate hearings. White’s nomination was pending for more than four years. Seeking what Levin told the Judiciary Committee in the summer of 2003 was a “fair resolution of this past injustice,” the two Michigan senators say they want a bipartisan commission that would recommend, though not guarantee, one or more candidates for each vacancy, at least one of whom would be acceptable to Democrats. The White House would then choose one person from that slate. Such a commission has operated in Wisconsin, for example, since 1979. If the commission is not the answer, however, there are other solutions that could allow one of the current appeals court candidates to withdraw without losing face. For example, a vacancy on the state’s Supreme Court could be filled by a current appeals court nominee. If that were to happen, the thinking goes, the White House could then choose another appeals court nominee acceptable to Stabenow and Levin, while keeping the other three nominees. And there is always the possibility of adding another seat to the circuit. That would give the White House a chance to pacify Levin and Stabenow and still keep its other nominees. FRESH HORSES FOR TRADE Bush’s ambitious legislative agenda might also figure into the overall nominations mix, with judicial candidates providing a useful bargaining chip in exchange for votes favoring White House legislation. “In days gone by, there was a lot more horse trading,” says one person close to the White House nominating process. “Judges were just another thing to trade.” That might be useful in the D.C. Circuit, where a fourth vacancy should come open in November 2005, when Chief Judge Harry Edwards is likely to take senior status. On the other hand, it’s difficult to see Democrats willing to forgo a filibuster of Brett Kavanaugh, a former Supreme Court clerk and now White House staff secretary. Kavanaugh was an associate counsel during Kenneth Starr’s independent counsel investigation of then-President Bill Clinton and the author of the Starr Report’s section on Monica Lewinsky. “Kavanaugh has no judicial experience and no trial experience,” says a Democratic Senate staffer. “Everything about him screams politics.” Which may be exactly the point. Ultraconservative judges with sterling Republican pedigrees help the White House in two ways: They advance a judicial and social agenda considered crucial to the Republican base, and they force Democrats to filibuster those nominees, which, in the sound-bite-driven world of Senate elections, can be a tough stance to defend. Republicans point most conspicuously to the defeat of former Senate Minority Leader Tom Daschle, D-S.D., whose opponent, John Thune, used Democratic filibusters to help depict Daschle as an obstructionist. “Republicans want to get a lock on Congress for the next generation or two,” explains Goldman, the University of Massachusetts professor, “and anything they can do to play to their base, they will do.” Several nominees appear to be in that camp, all of whom would likely be filibustered again, despite having more experience than Kavanaugh. That includes California Supreme Court Justice and D.C. Circuit nominee Janice Rogers Brown, who was successfully filibustered in November 2003, and Texas Supreme Court Justice and 5th Circuit nominee Priscilla Owen, who was successfully filibustered four times in 2003. Former Alabama Attorney General and 11th Circuit nominee William Pryor Jr., who has called Roe v. Wade “the worst abomination of constitutional law in history,” is viewed with even more suspicion by Democrats. But Pryor holds a trump card: After Republicans failed to break two filibusters against him in 2003, he was given a recess appointment by President Bush on Feb. 20, 2004. Although this ensures that Pryor will remain on the bench at least until the end of this year, supporters say his record so far shows that he’s not the radical his detractors paint him as. Specter, for one, is ready to push for him. “Pryor has handed down some very, very good opinions in the time he’s been on the bench,” he says. Such backing may be tougher to garner for William Haynes II, the Department of Defense general counsel and 4th Circuit nominee, whose job has put him squarely at the center of the administration’s controversial policies on detaining and interrogating prisoners. On the other hand, U.S. District Judge Terrence Boyle, despite a remarkably high reversal rate, may have a better chance than ever to reach the 4th Circuit now that Democrat John Edwards, North Carolina’s former senator who had effectively placed Boyle’s nomination on hold, has been replaced by Republican Richard Burr. RAISED STAKES There’s no shortage of overcooked rhetoric in judicial nominations battles. When asked whom he opposes the most among the 12 renominated candidates, a staffer for a Democratic member of the Judiciary Committee laughs and says, “Which serial killer is worse?” And take the case of William Myers III, a former mining industry lobbyist who spent two years as the Department of the Interior’s solicitor general and was nominated for a seat on the 9th U.S. Circuit Court of Appeals nearly two years ago. Myers is vehemently opposed by environmentalists and traditional left-leaning judge-picking groups. A senior Senate Republican staffer, however, says he has real doubts about the motives of the environmental groups opposing Myers’ nomination. “I’ve been told by people on the left, who say that the environmental groups will laugh and tell you over a beer that they wanted one [nominee] of their own to take down,” says the aide. “They wanted a seat at the table in the judge wars.” In the end, Democrats believe that they can weather the damaging publicity surrounding what seems like, inevitably, another round of filibusters for at least some nominees. After all, argues a staffer for another Democratic Judiciary Committee member, the stakes are particularly high. Seven of the 13 circuit courts are now dominated by Republicans. “We’re remaking the circuit courts here,” the staffer says. “Republicans realize this is worth fighting for and, in a sense, we realize the same thing.”

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