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Republican senators are anxious about 28 judicial nominees awaiting confirmation, the 46 total vacancies and the dwindling time left in President Bush’s term to get more of his candidates on the federal bench. Of the 28 nominees waiting approval by the Senate, 10 are appellate court nominees and 18 are trial court selections. The 4th U.S. Circuit Court of Appeals, in particular, is in the political crosshairs. With five of its 15 seats vacant and the current members of the court divided evenly with five Republican and five Democratic appointees, the president who fills those vacancies could shift the philosophical balance of the court. The 3rd Circuit has two nominees, including Shalom D. Stone, to fill the seat vacated by the elevation of Supreme Court Justice Samuel A. Alito Jr. One nominee on the D.C. Circuit would fill the seat left by Chief Justice John G. Roberts Jr. Two vacancies on the 6th Circuit and one on the 1st Circuit await confirmation. Bush has not nominated anyone to fill the single opening on the 9th Circuit, and he has nominees for four of the five 4th Circuit vacancies. Although senators don’t focus as much attention on district judge seats, two nominees have come in for vocal opposition: Richard H. Honaker, nominated for the district court in Wyoming, who is controversial due to his anti-abortion positions; and Gustavus A. Puryear IV, who is up for a judgeship in the Middle District of Tennessee. Puryear serves as general counsel for the private prisons company Corrections Corp. of America and has been criticized as hostile to civil rights. THE JUNE DEMARCATION Political tensions are building with the approach of June, which is considered the demarcation for potential nominees to win approval before the approaching November election slows all but the noncontroversial or compromise candidates. This cranked up the political rhetoric recently, with some Republican senators threatening to stall legislation until judges get confirmed. All nine Republican members of the Senate Judiciary Committee called on the committee chairman, Sen. Patrick Leahy, D-Vt., to confirm three circuit court nominees by Memorial Day: Robert J. Conrad Jr. and Steve A. Matthews, nominated to the 4th Circuit, and Peter Keisler, nominee to the D.C. Circuit. “Failing to include those three is unfair both to these nominees, who have been pending in committee for over 270, 220 and 660 days respectively, but also to litigants in the 4th Circuit who are shackled with an appellate court that is one-third vacant,” according to the letter by Republican members. In response, Leahy told the Republican committee members, “You can pick fights over a few of the more controversial nominations, or we can continue to make significant progress. I am sure there are some who prefer partisan fights designed to energize a political base, but I do not.” Bush confirmations lag behind the totals of his predecessors. He has had 298 judges confirmed so far in his two terms in office, including two Supreme Court justices, while Bill Clinton had 378 judges confirmed, which is second in history to President Ronald Reagan’s 389 judges. BACKROOM MANEUVERS Yet two backroom deals in the Senate may ease up the tensions, at least temporarily, and get a few candidates confirmed. Reid and minority leader Mitch McConnell, R-Ky., agreed to try to confirm three appellate court judges prior to the Memorial Day holiday, which falls on May 26. But they did not specify who among the 10 appellate nominees might get the green light. A second agreement produced a big breakthrough for the 6th Circuit, which has had two vacancies, one dating back eight years. Bush withdrew the controversial 6th Circuit nominee Stephen Murphy and resubmitted his name for a district court post in Michigan while nominating Helene White, someone acceptable to Sen. Carl Levin, a Michigan Democrat, for one vacancy. The other 6th Circuit nominee is Raymond M. Kethledge, who at 39 is one of the youngest nominees ever. He is known for his defense work in products liability class actions. Appellate nominations attracting the most heat include three of the four 4th Circuit nominees: Matthews, currently the managing director of South Carolina firm Haynsworth Sinkler Boyd; Conrad, a North Carolina federal district judge since 2005; and Rod J. Rosenstein of Baltimore, the U.S. attorney for Maryland since 2005. This article originally appeared in theNational Law Journal, a publication of ALM. •

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