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Acrimony Over Bush Judicial Nominations Resurfaces
Senate Democrats Threaten To Filibuster Conservative Duo

By Charles Babington
Washington Post Staff Writer
Wednesday, May 3, 2006

After months of relative quiet, senators raised the prospect yesterday of a return to bitter battles and a possible filibuster over judicial nominations, as the White House urged confirmation of two conservative nominees who have sought approval for years.

Democratic leaders said they certainly would filibuster one of the nominees, Terrence W. Boyle, and might filibuster the second, Brett Kavanaugh, if Republicans refuse to call him back for a second hearing before the Senate Judiciary Committee. The partisan rhetoric was the strongest signal yet that the Senate might revisit the brinkmanship that brought the chamber to the edge of crisis a year ago, when a bipartisan group of 14 members crafted a temporary cease-fire.

The "Gang of 14" pact cleared the path for confirmation of several appellate court nominees whom Democrats had filibustered in President Bush's first term, and it doomed the chances of a few others. It also narrowed the Democrats' tactical options for opposing Bush's two appointees to the Supreme Court last year. But the Kavanaugh and Boyle nominations may test its resiliency.

In 1991, President George H.W. Bush first nominated Boyle, a U.S. District judge in North Carolina, for a seat on the U.S. Court of Appeals for the 4th Circuit. Liberal groups vigorously opposed him -- as they do now -- saying his rulings have shown a disregard for minorities and disabled people. His nomination languished, and he was renominated in May 2001.

Last June, a month after the Gang of 14's breakthrough, the Judiciary Committee endorsed Boyle on a party-line vote, but the Senate has yet to give him a final vote. A recent report in Salon.com, describing Boyle's stock holdings in companies involved in lawsuits he was hearing, has given Democrats new ammunition.

"I can't imagine how President Bush could bring him to the Senate for confirmation," Senate Minority Leader Harry M. Reid (D-Nev.) told reporters yesterday. If GOP leaders insist on a confirmation vote, he said, Democrats "without question" will launch a filibuster.

A filibuster, or endless debate, can block action on a bill or nomination unless 60 of the 100 senators vote to end it. Republicans hold 55 Senate seats. Early last year, Majority Leader Bill Frist (R-Tenn.) threatened to change Senate rules to outlaw judicial filibusters, the "nuclear option." The Gang of 14 -- seven senators from each party -- signed an agreement that effectively raised high barriers to both a successful judicial filibuster and an attempted rules change.

Frist signaled last month that before tackling the Boyle nomination he would seek a confirmation vote on Kavanaugh, the White House staff secretary who has been nominated to the Court of Appeals for the D.C. Circuit. The Judiciary Committee has scheduled a vote tomorrow on whether to endorse Kavanaugh, 41, but Democrats are pressing for a second chance to question him. Chairman Arlen Specter (R-Pa.) said he was considering the request.

Nominated in July 2003, Kavanaugh testified to the committee in April 2004. Democrats say several Bush administration controversies have arisen since -- including mistreatment of foreign detainees, warrantless domestic surveillance and the Jack Abramoff lobbying scandal -- and they want to know whether Kavanaugh had a role in them from his post that handles all paperwork entering the Oval Office.

Kavanaugh met yesterday in the Capitol with Sen. Charles E. Schumer (D-N.Y.), who supports a second hearing. Schumer told reporters that Kavanaugh said he played no role in Abramoff's activities or the controversial surveillance program, "and he tried to assure me that he would not be an ideologue" as an appellate judge.

Reid said Kavanaugh is subject to "a possible filibuster" in the full Senate. He also noted that the American Bar Association recently gave the nominee a somewhat lower rating than it granted in 2003 and 2005. The first two ratings by a 14-member panel were "majority well-qualified, minority qualified," the ABA reported, whereas this year's rating was "majority qualified, minority well-qualified."

White House spokeswoman Dana Perino said the revised rating resulted from changes in the ABA panel's personnel, not from new findings. Even his lower rating is higher than that given to some incumbent judges, Perino said. Kavanaugh "is clearly highly qualified to serve on the D.C. Circuit," she said.

Nan Aron, president of the liberal Alliance for Justice, called the push to confirm Kavanaugh a "transparent effort to rouse the conservative base for both the midterm elections and Senator Frist's own run at the presidency."

Perino, addressing allegations that Boyle's stock holdings may constitute a conflict of interest, said: "Judge Boyle has never intentionally participated in any matter in which he should have recused himself, nor has there been any suggestion that Judge Boyle knowingly overlooked any conflict or used his office for private gain."

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