The White House is preparing to send a raft of new judicial nominations to the Senate in the next few weeks, according to Republican strategists inside and outside the administration -- a move that could challenge the durability of last week's bipartisan filibuster deal and reignite the political warfare it was intended to halt.
The Bush administration has been vetting candidates for 30 more federal district and appeals court vacancies that have been left open for months while the Senate battled over previous nominations stalled by Democrats. Now that Democrats have agreed not to filibuster any new candidates except in "extraordinary circumstances," Republicans are eager to test the proposition.
"Republicans feel this is a good moment to move forward with judicial nominations," said Sean Rushton, executive director of the Committee for Justice, a group formed by C. Boyden Gray, who was White House counsel under President Bush's father, to support the current president's judicial appointments. "It's time to move on and also to get past the Clinton period" when Democrats salted the federal judiciary with more liberal appointments.
Rushton said he expects "a large swath" of nominations in the next few weeks unless Chief Justice William H. Rehnquist or another Supreme Court justice decides to step down at the end of the term later this month, an event that would throw current plans out the window. Administration and congressional officials, who spoke on the condition of anonymity because no announcement has been made, said they, too, expect a flurry of lower-court nominations within weeks. "There's about 20 waiting in the wings," a Senate Republican official said.
No names have been publicly floated, but officials familiar with the process said they believe the nominees will be consistent with Bush's previous choices, some of whom have stirred considerable controversy among Democrats. The Bush team indicated that it plans no changes in its selection process in the wake of the Senate deal. Senate Democrats said they have not been consulted on any new nominations.
Although less dramatic than a Supreme Court fight, a flood of lower-court nominations would surely touch off a new round of conflict, with interest groups on both sides primed for battle. Bush wants to reshape the federal court system with more conservative judges who will rein in what he and supporters see as an overly activist bench, while liberals view many of his nominees as extremists.
"These nominees are certainly important," said Nan Aron, president of the Alliance for Justice, a liberal advocacy group. "They make decisions that affect every aspect of our daily life. And because the Supreme Court hands down fewer and fewer decisions each year, the lower courts have assumed a much greater importance in the overall scheme."
Last week's agreement was crafted by 14 senators from both parties who bucked their leadership in an effort to head off a bitter showdown over Bush nominees who had been blocked from confirmation for months and even years. Under the deal, the Democrats agreed to allow three Bush appellate court nominees to receive floor votes, effectively ensuring their confirmation, while leaving four others unprotected.
In exchange for the Republicans dropping the "nuclear option," a plan to reinterpret Senate rules to eliminate the minority's right to filibuster judicial nominees, the Democrats agreed not to filibuster future Bush nominees except in "extraordinary circumstances."
Neither side defined the terms. Republicans have said the agreement means that no future nominees could be filibustered for being as conservative as the three covered by the deal. It "sets the definition of extraordinary circumstances that the president can meet quite easily," Gray said. Democrats have disputed that interpretation.
The Senate confirmed one of the three Bush nominees, Priscilla R. Owen of Texas, last week and plans to open debate on another, Janice Rogers Brown of California, on Monday to be followed by a vote to close off debate on Tuesday. Republicans plan to bring the third, William H. Pryor Jr. of Alabama, to the floor later in the week.
After that, Republican leaders are considering whether to try to force votes on one of the other four not covered by the deal, William G. Myers III of Idaho, to test Democratic resolve. Democrats said they believe they have a united caucus -- excepting Sen. Ben Nelson (Neb.) -- to block the other judges, meaning they would have enough votes to maintain a filibuster.
Any fresh nominations would come after that, Republican strategists said. Of 45 federal court vacancies, Bush has named nominees for 14. Except in one case, he has sent no new names all year, instead resubmitting nominations that had been blocked in the previous congressional session.
Administration officials attributed the delay in submitting nominees for the other vacancies to the transition between first and second terms in the White House counsel's office and Justice Department. But after months of examining candidates, officials said privately they are nearly ready to send up names for many if not most of those seats.
The White House would not comment on future nominations. "Obviously when there are vacancies, it's something we want to move forward on as quickly as possible," White House spokeswoman Erin Healy said. But she added, "we don't speculate on timing on when we do these things."
Democrats called on Bush to abide by the Senate agreement's provision, urging him "to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration."
"We do consult," Bush said at his news conference this week. "Obviously, we consult on district judges and . . . we listen to their opinions on appellate judges -- 'their' opinions being the opinions from the home state senators, as well as others."
Yet Bush found the deal sufficiently hazy that he could not predict its effect. "Whether that agreement means that a [nominee] is going to get an up-or-down vote, I guess it was vague enough for people to interpret the agreement the way they want to interpret it," he said. "I'll put a best face on it, and that is that since they're moving forward with Judge Owen, for example, and others, that 'extraordinary circumstances' means just that -- really extraordinary."
He paused. "I don't know what that means," he said to laughter. "I guess we're about to find out when it comes to other appellate judges."