Bush to Revive Failed Judicial Nominations

By Richard B. Schmitt and Nick Anderson

Dec. 24, 2004 12 AM PT

Times Staff Writers

WASHINGTON — President Bush intends to renominate to federal judgeships 20 candidates who failed to win Senate approval during his first term, the White House said Thursday.

The announcement, coming before the new Congress convenes next month, drew jeers from Democrats and cheers from Republicans eager to flex their muscles following gains in November.

The statement issued by White House Press Secretary Scott McClellan decried the Senate’s failure to act on the “highly qualified individuals” Bush had nominated during his first term and contended that inaction had exacerbated a backlog of cases in the federal courts.

Bush “looks forward to working with the new Senate to ensure a well-functioning and independent judiciary,” the statement said.

The nominees, who will officially be put forward once the Senate is in session, include some of the president’s most contentious choices for the federal courts, including several ardently opposed by abortion-rights groups and a Pentagon lawyer linked to a disavowed administration legal memo on torture.

Among them is California Supreme Court Justice Janice Rogers Brown, whose nomination last year to the Court of Appeals for the District of Columbia -- a traditional steppingstone to the Supreme Court -- ignited debate because of her statements that judges should use their authority to rein in big government.

During the last two years of Bush’s first term, Senate Democrats used filibusters to block 10 of the president’s 34 appellate court nominees, arguing that they held views that were too extreme.

Propelled by socially conservative voters and a wider Republican majority in the Senate, the president appears ready to use his second term to try to move the federal courts to the right on such issues as religion, abortion, gay rights, the environment and consumer protection. But even Republicans acknowledge that the fates of some of the nominees remain unclear, and that they expect continuing opposition from their colleagues across the aisle.

And while it is routine for presidents to revive stalled judicial nominations when a new Congress convenes, in this case the number and the backgrounds of the nominees signal a continuation of the partisan wrangling over the composition of the federal bench that has infused Bush’s presidency.

Even the incoming Senate Judiciary Committee chairman, Sen. Arlen Specter (R-Pa.), expressed reservations about the timing of the White House action.

“I would have preferred to have had some time in the 109th Congress to try to cool the climate to avoid judicial gridlock and future filibusters,” Specter said in a comment relayed by a top aide. “I’ve been talking to my Republican colleagues on the committee, and also some of the Democrats on the committee, with some ideas I have to try to improve the climate. But the president has the right to send over names, and I respect that. And we will move ahead on his nominees with hearings and appropriate consideration.”

But a statement issued by Senate Majority Leader Bill Frist (R-Tenn.) seemed to put pressure on Specter to support the nominations.

“The president has decided to renominate many highly qualified and capable individuals to serve as federal judges,” Frist said. “I look forward to working with Sen. Specter, other Judiciary Committee members and my colleagues to ensure quick action and up-and-down votes on these judicial nominees.”

Democrats gave no sign Thursday of relenting in their criticism of Bush’s judicial nominees, and it seemed likely that the stalemate would continue for at least some of the selections. Still, the new Senate Democratic leader stopped short of pledging to resume filibusters.

“I was extremely disappointed to learn today that the president intends to begin the new Congress by resubmitting extremist judicial nominees,” said incoming Senate Minority Leader Harry Reid (D-Nev.). “Last Congress, Senate Democrats worked with the president to approve 204 judicial nominees, rejecting only 10 of the most extreme. Our swift action reduced the vacancy rate on our courts to the lowest level in 15 years, and outpaced the confirmation rate of Reagan, Clinton and former President Bush.”

Reid added: “There are pressing issues facing this nation -- from the war in Iraq to the 44 million Americans without healthcare -- that demand bipartisan action by the administration and Congress. It’s a disservice to the American people to detract from the important work of the Senate to reconsider these failed nominees.”

“In this opening shot, the White House is making it clear that they are not interested in bipartisanship when it comes to nominating judges,” said Sen. Charles E. Schumer (D-N.Y.), a Judiciary Committee member.

But Senate Republicans see the November elections, particularly the defeat of Senate Minority Leader Tom Daschle (D-S.D.), as a mandate for Republicans to push Bush judicial nominees to confirmation, and they contend that the public has grown weary of Democratic obstruction in the Senate.

They argue that their larger majority -- they picked up four seats in the Senate -- should enable the stalled nominees to puncture potential Democratic filibusters. The Senate will have 55 Republicans, 44 Democrats and one independent who usually votes Democratic.

“This is really unfinished business,” Sen. John Cornyn (R-Texas), a Judiciary Committee member, said of the White House announcement. “It’s time we give these nominees an up-or-down vote.”

Twelve of the 20 named Thursday are candidates for seats on the federal circuit courts of appeal, just one rung below the Supreme Court on the judicial ladder. The other eight were selected for federal district court seats.

In all, Bush plans to renominate seven nominees blocked through filibuster in 2003 and 2004. They include Texas Supreme Court Justice Priscilla R. Owen and former Alabama Atty. Gen. William H. Pryor Jr., whom Bush named to the federal appellate bench as a recess appointment this year, but who must be confirmed by the Senate to retain the seat.

Another nominee is William J. Haynes II, who as the Defense Department’s general counsel last year oversaw a working group that prepared a legal memo on the eve of the war with Iraq that argued the president may not be bound by anti-torture laws.

Critics say the memo contributed to the abuses at military prisons in Iraq. Haynes has said that he and the Pentagon oppose any use of torture.

The White House list did not include Los Angeles County Superior Court Judge Carolyn B. Kuhl, whose nomination to the U.S. 9th Circuit Court of Appeals in San Francisco has languished since Bush first selected her in June 2001.

Kuhl, a former Justice Department official in the Reagan administration, said she had declined to accept Bush’s offer of renomination.

“It is time for me and my family to move on, professionally and personally,” Kuhl said in a prepared statement. She added: “The judicial confirmation process for the federal courts is broken, to the detriment of the judicial branch.”

For Democrats seeking to block Bush, the magic number is 41. Under Senate rules, a minority of that number or more can uphold a filibuster and force the 100-member Senate to delay indefinitely the final vote on a nominee.

But the Nov. 2 election results will make it more difficult for Democrats to withstand GOP pressure.

Consider the filibuster this summer of the nomination of William G. Myers III of Idaho, chosen for the 9th Circuit Court of Appeals. Fifty-three senators voted to end the filibuster and 44 to uphold it, with three absent.

But four of his Democratic opponents that day will not be in the Senate next year -- all replaced by Republicans allied with Bush. And only one of those absent, Sen. John F. Kerry of Massachusetts, would be expected to continue to support a filibuster.

The other two absentees did not run for reelection, and both of those seats will be filled by Republicans.

That means a bare minority of 41 senators would be left to support an anti-Myers filibuster, should Democrats choose that route next year. And Republicans would undoubtedly bring heavy pressure to force one of the holdouts to switch and allow a final vote.

Similar scenarios could unfold for other stalled nominees. Another option Republicans threaten is a rule change that would allow a 51-vote majority, rather than a 60-vote supermajority, to bypass a filibuster.

(BEGIN TEXT OF INFOBOX)

Judicial nominees redux

When the Senate reconvenes next month, President Bush intends to renominate to federal judicial positions 20 people nominated during his first term who did not receive up-or-down votes.

Court of Appeals

Terrence Boyle, 4th Circuit

William J. Haynes II, 4th Circuit

Priscilla Richman Owen, 5th Circuit

David W. McKeague, 6th Circuit

Susan Neilson, 6th Circuit

Henry W. Saad, 6th Circuit

Richard A. Griffin, 6th Circuit

William H. Pryor Jr., 11th Circuit

William G. Myers III, 9th Circuit

Janice Rogers Brown, District of Columbia Circuit

Brett M. Kavanaugh, District of Columbia Circuit