Conservatives Worry About Court Vacancies

A White House failure to move quickly to fill judicial openings around the country is fueling concern among conservative allies that President Bush may miss an opportunity to use his final months in office to continue putting his stamp on the federal judiciary.

Bush enjoyed great success in installing conservative jurists in his six years in office, from district court judges to his two nominees to the Supreme Court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

But in the closing months of his administration, Bush faces what University of North Carolina law professor Michael J. Gerhardt calls the "double whammy" of a Senate controlled by Democrats on one hand, and senators of his own party determined to play a greater role in judicial selections on the other. In the background is a ticking clock.

Bush has named only five nominees for 13 vacant seats on the nation's influential courts of appeals -- there will be more vacancies this summer -- and moved to fill only 21 of 37 district court openings. Lawmakers and activists on both sides of the aisle see the door to new nominees being slowly shut as the administration moves into lame-duck status.

"The White House understands that it needs to nominate people for judicial vacancies, especially on the courts of appeals, as soon as possible," said Curt Levey, executive director of the Committee for Justice, which supports Bush's judicial efforts. "There's only about a year to play with, and it can easily take a year to confirm a nominee who Democratic senators or groups on the left decide to target."

The newly energized battle over a Bush appointment to the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, has served notice that Democrats intend to use their majority status to more aggressively challenge Bush nominees who are opposed by liberal advocacy groups.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) held over last week the panel's consideration of Mississippi Court of Appeals Judge Leslie H. Southwick amid what appeared to be solidifying opposition by the committee's Democrats.

Liberal groups Alliance for Justice and People for the American Way have declared Southwick unfit for the court because of what People for the American Way President Ralph G. Neas has called Southwick's "problematic record on civil rights" that "strongly suggested he may lack the commitment to social justice progress."

Levey said the groups "reflexively label any white male judicial nominee from the South as racist." He added that further delays will "destroy the 'peace treaty' on judges" that Democrats and Republicans had reached after years of filibusters and battles over Bush's nominees.

But though some people single out Democrats for criticism, others worry that changes in the White House counsel's office and the congressional uproar over Attorney General Alberto R. Gonzales have pushed the issue lower on the priority list. "I have been pressing them to submit names -- because every day that passes it becomes that much more difficult," said Sen. Arlen Specter (Pa.), the committee's ranking Republican. "I am not disappointed, because the president is busy. But there is an opportunity that could be missed if they don't start submitting names."

Added Sen. John Cornyn (R-Tex.), a strong White House ally who is on the committee: "With all the investigations and things that have been going on, we have not seen a steady stream of nominees coming to the Senate."

Republicans and Democrats are in a numbers war about exactly what pace a Senate controlled by one party owes a president of the opposing party. Republicans say the Senate should confirm at least 15 circuit court nominees before Bush leaves office, because that is the historical average for the last two years of a president's term.