Judicial Front Quiet, for Now

Posted November 13, 2007 at 6:50pm

After seven years of bruising battles over President Bush’s lifetime appointments to the federal bench, Senators in both parties appear ready to hang up their gloves — at least for now.

But while Democrats and Republicans said this week that they would like to call a permanent end to their long-standing feud over Bush’s nominees to the courts, there are simply too many unknowns to predict a long-term detente. Election-year politics and an opportunity by a lame-duck chief executive to make a last attempt to install his own appointments to the circuit court could trump any desire to work with majority Democrats in a highly charged environment, Senators in both parties said.

“There’s a chance that maybe the tone might change a little bit,” said Sen. Sheldon Whitehouse (D-R.I.). “But there’s nothing to suggest that the White House is more interested in filling judgeships [than having a battle].

“There’s no sign of an epiphany.”

One thing that is clear, however, is that the Senate is unlikely to take on any new court battles this year, and it doesn’t appear that there is any particular nominee outstanding who would spark an immediate showdown.

“It’s always difficult to predict the future — but it’s hard to imagine that we will be able to avoid a skirmish or two over judicial nominations next year,” Jim Manley, spokesman for Majority Leader Harry Reid (D-Nev.), said.

The first year of the 110th Congress has moved relatively smoothly for Bush’s court nominees. Bush started out the year by withdrawing a series of his most controversial picks, and the bulk of this year’s selections have advanced uneventfully through the Senate.

The one exception so far has been the installment of Leslie Southwick, who narrowly secured his place on the 5th U.S. Circuit Court of Appeals amid a volley of criticism over his civil and human rights background.

But Southwick wasn’t considered a controversial nominee at the outset, with Senators in both parties initially anticipating he would move as a consensus pick for the New Orleans-based bench. Only after his background was fully vetted did a majority of Senate Democrats mount an offensive against him — one that proved unsuccessful.

The dynamic this Congress is noteworthy as federal judgeships have been among the Senate’s most controversial topics since Bush took office in 2001 — at times bringing the chamber to a virtual standstill. In 2005, for instance, Republicans considered moving to shelve the minority’s use of the filibuster to try to go around Democratic opposition to Bush’s nominees.

A deal was later struck to keep the filibuster intact in exchange for the approval of certain stalled judges.

With the past still very much in view, sources in both parties said it is nearly impossible to guarantee that all future judicial fights have been put to pasture. What’s more, it remains unclear whether Bush — along with minority Republicans — may be desperate for a Congressional fight in 2008 on an issue that has proven to excite base voters in a critical election year.

“If there are [future controversies], they will be done with an eye toward the election year,” said one knowledgeable Republican source. “I expect a bruising battle next year. When or who? I don’t know.”

Whether it happens are not, Democrats say they are preparing for Republicans to try to wage a fight, if only by criticizing the pace with which Democrats have advanced circuit court nominees through the Senate. But they also believe they will have the upper hand in 2008 against a politically impotent president who has struggled to overcome Democratic objections to a panoply of his priorities.

“Based on the circumstances — political and otherwise — it would seem to be an exercise in futility to try it and if they could try it, the same circumstances suggest any attempt to gin up political controversy would fail,” said one Senate Democratic aide.

Senate Democrats point to two outstanding circuit court nominations that could pose a problem next year, including Peter Keisler to the 5th U.S. Circuit Court and E. Duncan Getchell to the 4th U.S. Circuit. But those nominees also provoke some Republican concerns and it remains unclear if either of those nominees will even move forward.

Several Senators said they remain hopeful that the Bush administration would look to 2008 as a last chance to get any of his nominees through a Democratic majority and would move cautiously. Plus, several cautioned that Senators have grown wary of the battle.

“The desire for a fight may not be as strong right now,” said Sen. Mark Pryor (D-Ark.). “First, they’ve been through this before and they are tired of it. Also, with a year left, is it really worth a big brouhaha over a federal judge?”

Sen. John Thune (R-S.D.) said that he believes the “window is closing” for Bush to move controversial nominations through the Senate, and with that in mind, it’s likely that both parties will be looking to coalesce around mutually agreeable court picks — unless an opening arises on the Supreme Court, an unlikely scenario that would assuredly shut down the Senate, he said.

“As we get into a presidential election year, it becomes more and more difficult to get these guys through,” Thune said.

Regardless of whether there are any more fights over specific nominees, Republican Senators are preparing again to criticize the pace with which Democrats have confirmed Bush’s court picks. GOP Senators say they will assuredly lob those charges at the Democrats for failing to approve what they view is an adequate number of circuit court nominees this Congress.

Senate GOP Conference Chairman Jon Kyl (Ariz.) said Republicans continue to expect Senate Democrats will confirm an average of one federal appellate judge each month through next summer. Five have been installed so far this Congress, and Senators are expected to approve a sixth — John Daniel Tinder to the 7th U.S. Circuit — in the coming days.

“We’re not on track to get that done,” Kyl argued. “Therefore, we will keep pressing on that.”

Senate Democrats have anticipated that charge for some time, with Judiciary Chairman Patrick Leahy (D-Vt.) regularly reminding his colleagues of the Senate’s progress advancing Bush’s picks this year. Democrats have countered that any accusation that they’ve slow-walked nominations rings hollow since Bush has failed to keep up with the openings on the bench.

On the circuit courts, for example, 14 vacancies remain, and Bush has yet to name picks for six of those slots.

“The chairman really wants to compromise with the White House on these nominees,” Leahy spokeswoman Erica Chabot said. “When we have cooperation, we move forward.”