Until recently, few people in Washington had ever heard of Ted Stewart. The 50-year-old chief of staff to the Utah governor had irked environmentalists back when he headed the state's natural resources division, but the controversy had never extended beyond the Rocky Mountains.
Now, however, this inconspicuous state Republican has become the improbable central character in a high-stakes impasse over federal judges.
At the beginning of the year, Senate Judiciary Chairman Orrin G. Hatch (R-Utah) proposed Stewart, a political friend, for an opening as a federal judge in Utah. But so far the Clinton administration has been unwilling to nominate Stewart for the post. In response, Hatch has essentially shut down the confirmation process for existing nominees: He has not scheduled a confirmation hearing for any nominee to the federal bench -- 42 are now pending -- since January. "I am concerned about my Utah recommendation," Hatch told committee Democrats at a recent meeting.
The conflict appears to mark the first time in 40 years that a senator has blocked all judicial confirmations. And as the battle drags on, its impact is extending far beyond the Beltway, affecting the pace of cases nationwide and potentially altering the long-term complexion of the federal bench and Clinton's judicial legacy.
"I couldn't say this is a perversion of the process," said Sheldon Goldman, a political science professor at the University of Massachusetts who has studied court appointments extensively. "But I could say you are going to the brink of a constitutional crisis when you say, `My man or nothing moves.' That's ominous."
According to Goldman, Hatch is the first senator to halt the process over a single nominee since 1959, when then-Majority Leader Lyndon B. Johnson stalled President Dwight D. Eisenhower's nominations until he could get a political pal onto a federal court in Texas.
For Hatch, the issue goes beyond Ted Stewart. For six years, Hatch has shepherded Clinton's appointees onto the federal bench -- often over the complaints of his conservative colleagues in the Senate. Now, it appears, it's payback time.
But the Clinton administration, which was involved in intense negotiations on the Stewart matter yesterday, feels that Hatch has to deliver more if he wants a deal. Vice President Gore, in particular, is concerned by Stewart's environmental record. "For the vice president, this is one of the issues that goes to his soul," an administration lawyer close to Gore said yesterday.
White House Chief of Staff John D. Podesta, a key player in the ongoing negotiations, is angered by Hatch's power play, according to administration and Senate sources, but has signaled that if concessions are made, a deal might be possible. Podesta and other Clinton aides are trying to transform Hatch's demand into an opportunity to guarantee action on several controversial nominees who have been in limbo for years -- particularly those to the liberal 9th Circuit in California, where a record seven nominees are pending out of 28 judgeships. Several nominees, including Marsha Berzon and Richard Paez, have been hanging for more than a year.
In addition to the question of how much Hatch will be willing to deal, however, there is the issue of what he can actually accomplish when it comes to moving controversial nominees. Although the 22-year Senate veteran has considerable control over what happens in his committee, he is under great pressure by the right wing of his party to delay Clinton's nominees from getting on the bench. Key GOP senators, including Majority Leader Trent Lott (Miss.), have protested past Clinton nominees that Hatch has worked to have confirmed. And even after emerging from the committee, each nominee faces a full Senate vote -- a step that, under Senate practice, can be indefinitely delayed by a single member.
The Stewart uproar comes as the last chapter of Clinton's judicial legacy is starting to be written -- the nominations process typically halts in a presidential election year -- and as the Senate GOP shows signs of wanting to minimize Clinton's impact on the federal bench.
"This is a critical time for all of our nominations and we believe it is important to have some movement as soon as possible, so that these vacancies can be filled and the work of the judicial branch can move ahead," White House Counsel Charles F.C. Ruff said yesterday. He declined to comment specifically on the Stewart situation.
Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee, asserted that Hatch's move is affecting the federal courts' ability to conduct business. "Litigants aren't being heard," said Leahy, who pointed to a total of 70 vacancies on the 843-seat bench and a new request from the nation's judges for about 80 additional seats to accommodate case backlogs.
And the stakes are not limited to the nominees on hold, but also include any future nominations that are made to fill another 50 vacancies expected throughout the year, and whose months-long confirmation process will be delayed by the current logjam.
Hatch previously told reporters that when he spoke to Clinton about his wishes, he "did not disabuse" the president of the notion that he is holding nominations hostage to a Stewart appointment. People close to Hatch said his attitude is that he already has shown good faith to the administration by helping it move some 300 judges onto the bench.
Stewart became chief of staff to Utah Gov. Mike Leavitt (R) last year. Prior to that post, he spent five years running Utah's Department of Natural Resources, where he faced constant criticism from environmentalists for his positions favoring business interests and development over conservation and wildlife protection. Hatch, however, has described Stewart, who holds a law degree from the University of Utah, as "capable" and "one of the finest people I know."
It is not unusual for a senator to try to influence the White House over a home-state judgeship, particularly not when the senator is as powerfully positioned as Hatch. Nor is it unusual for a Democratic White House to name a few Republicans to the bench. But Stewart's record led national environmental groups to take the highly unusual step of opposing a judicial nominee and mobilizing other liberal-leaning groups against him.
Greg Wetstone of the Natural Resources Defense Council, which has been at the vanguard of Stewart opposition, suggested yesterday that compromise is possible: "As bad as Ted Stewart is, with all the judicial vacancies that have been languishing for so long, it may well be that there is a package that would bring a number of good environmental judges to the bench and would overall be better. But we would want to look very carefully at what that package is."
Filling the Bench
There are 843 permanent seats on the federal bench, which includes the international trade, appeals, district and Supreme courts. Federal judges are nominated by the president and confirmed by the Senate.
Number of court nominees appointed to permanent posts
Even if President Clinton's pending nominations are approved, he is unlikely to match President Ronald Reagan's record number of appointments.
SOURCE: Administrative Office of the U.S. Courts
CAPTION: Reagan: 384
CAPTION: Clinton: 305