By Robert Barnes and Michael Abramowitz
Washington Post Staff Writers
Sunday, June 10, 2007
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.
But Leahy says the number is that high only because Democratic Senates have been generous. The Republican-led Senate toward the end of the Clinton presidency returned 17 circuit court nominees without taking action -- more than the number it confirmed, Leahy says.
But whether or not Democrats are slowing the consideration of the nominations, the White House has been slow in making them. The biggest hole is on the U.S. Court of Appeals for the 4th Circuit, the traditionally conservative court that covers Maryland, Virginia, West Virginia and the Carolinas, and that has been the court favored by the administration for the prosecution of terrorism cases.
Two of the four controversial nominations that Bush withdrew at the beginning of the year were for the 4th Circuit. By July, there will be four openings, and a fifth judge will be ready to retire as soon as a replacement is found. But there are no current nominees for the posts.
The 4th Circuit offers a case study of the president's difficulties. One of the seats is traditionally held by a Marylander. But the White House is having a difficult time finding a nominee that would appeal to Bush's conservative base and would also be acceptable to the state's two liberal Democratic senators, Barbara A. Mikulski and Benjamin L. Cardin.
Republican John W. Warner, Virginia's senior senator, has not been happy with the White House choices for the two seats that are supposed to be filled with nominees from the commonwealth. So he is interviewing candidates on his own and has invited his freshman Democratic counterpart, James Webb, to join him in the process. The two have interviewed "a few dozen" potential candidates for both district and circuit court judgeships, according to Warner spokesman John Ullyot.
Sen. Lindsey O. Graham (R-S.C.) was openly critical of the now-withdrawn nominee from his state and this month released the names of two people -- a judge from Greenville and a lawyer from Columbia -- whom he said the White House should consider.
And Specter, who worries about the White House's pace, acknowledges that he is in a "tussle" with the administration over an opening on the U.S. Court of Appeals for the 3rd Circuit, based in Philadelphia. "The president and I are in negotiations on that," he said.
Specter would not name the person involved, but a source close to the nomination process said he wants a judgeship for Philadelphia lawyer Carolyn Short, the Judiciary Committee's general counsel when Specter was chairman. Some conservative activists are opposed.
Some conservatives say privately that the Republican senators are overstepping their responsibility, which traditionally gives them a much larger role in district courts than in the appellate courts.
"There has been a long-standing practice in Republican administrations that courts of appeals nominees are the president's prerogative, period," said one conservative who is close to the nominating process and would speak only on the condition of anonymity.
White House spokeswoman Emily Lawrimore said the current nominees are "eminently qualified" and deserve to be confirmed. She added that the administration continues to "search thoughtfully and thoroughly" for additional names, and that officials "look forward to announcing nominees for all vacancies."
But Bush had trouble getting some nominees through even when Republicans were in charge. The changed political landscape may present the president with pragmatic choices. "With Democrats in control, they certainly have the power to engage in greater scrutiny of these nominees," said Nan Aron of the liberal Alliance for Justice. "And to block those who are unacceptable."
Research director Lucy Shackelford contributed to this report.