A Nominations Morass

Reid Angers Republicans on Deal Over Circuit Court Judges

Posted May 19, 2008 at 6:00pm

After months of trying to resurrect presidential nominations as a hot-button election-year issue, Senate Republicans could find themselves on the losing end of the message this week — thanks to President Bush’s newfound desire to negotiate with Democrats and the GOP’s objections to a pending judicial nominee Bush put forth as an olive branch to the majority.

Frustrated Republicans accused Senate Majority Leader Harry Reid (D-Nev.) of backing out of a deal he reached with Minority Leader Mitch McConnell (R-Ky.) to move three unspecified judicial nominations before the Memorial Day recess, which begins Friday.

Although publicly Republicans attacked Reid for allegedly breaking the deal, privately many acknowledged that the agreement did allow Reid enough flexibility to move nominees who have few fans among conservatives, making it difficult for Republicans to mount an effective message offensive.

“They’re not at the top of the list for conservatives,” one GOP aide conceded.

Republicans have been itching for a political fight over Bush’s judicial nominations for months, but they backed off after McConnell and Reid reached an agreement to advance three circuit court nominees.

At the time, McConnell forced Reid’s hand by threatening to sink a popular highway funding measure unless the Majority Leader committed to try to advance the judges before the break.

The deal seemed on track, but only for a short time.

Now it appears that just one of the trio is likely to move this week, G. Steven Agee to the Court of Appeals for the 4th Circuit.

Helene White and Raymond Kethledge, the nominees for the 6th Circuit, are next in line, but are stuck before the Judiciary Committee as panel members await updated American Bar Association ratings and Republicans seek written answers to questions about their backgrounds.

White’s vote is tied to a vote on Kethledge, under a separate deal between Bush and Michigan’s two Democratic Senators, Carl Levin and Debbie Stabenow. But Republicans have complained that Reid and Judiciary Chairman Patrick Leahy (D-Vt.) have rushed White in such a way as to force Republicans to either accept White without significant review or blow up the deal and lose Kethledge as well.

“This is what happens when the judicial confirmation process that we have … is sort of circumvented and unnecessarily expedited,” a senior GOP aide said.

Judiciary ranking member Arlen Specter (R-Pa.) Monday charged that Reid’s deal with McConnell did not require him to expedite White’s nomination, saying that to do so was unfair because Republicans submitted a number of questions to White to which she has not yet responded, and the American Bar Association has not yet released her updated ratings.

In fact, Specter said, there are plenty of other nominees that could be pushed through.

“Peter Keisler … has been waiting on the committee docket for 686 days,” Specter said Monday. “He could be confirmed easily in the time allotted. When the arrangement was made, Judge Robert Conrad, who had been waiting for a hearing for 303 days, could have been processed and confirmed,” Specter said. “Sen. Reid had plenty of alternatives to deal with. He did not have to go to Judge White [with] this phenomenal effort on a rush to judgment.”

A GOP leadership aide predicted that if, as expected, the deal collapses, Republicans likely will accuse Reid of essentially lying to McConnell in private conversations on the deal, and will use the already substantial reservoir of ill will between the two sides to put even more pressure on the Majority Leader.

“There’s always a price to pay for this kind of stuff,” the aide contended.

Reid rejected GOP complaints about the process Monday, stressing in a floor speech that while “we’re going to do as many circuit court judges as we can … I specifically said at that time [of the deal] that I can’t guarantee three nominees” because they could be held up by circumstances outside his control.

Reid also looked to lay the blame squarely on the shoulders of Republicans. “Senators on the Republican side of the Judiciary Committee delayed consideration of Judge White,” Reid said, arguing that while some of the 34 written questions were legitimate, “there are a number of others that are very time-consuming and I’m not sure have any bearing on her qualifications.”

Should the deal collapse, “it will be despite my best efforts,” Reid said.

If approved this week, Agee will become the eighth circuit court judge confirmed during this Congress.

GOP lawmakers have been pushing for Democrats to approve at least 15 appellate judges by this summer — or the same number approved by a Republican Senate during President Bill Clinton’s final two years in office.

Circuit court picks are often highly contentious simply because the stakes are so high: Because of the limited number of cases taken up by the Supreme Court, they are usually the last word on complicated legal questions.

If White and Kethledge’s nominations stall this week, it remains to be seen whether they will ever win Senate approval. Asked whether Agee could be the final circuit nominee approved this year, Reid spokesman Jim Manley said, “not necessarily — no,” but stopped short of predicting White and Kethledge’s futures, saying they rest in GOP hands.

Leahy said that in order for the federal appellate picks to keep moving through the Senate, both parties need to work together. Like Reid, Leahy laid the blame at the GOP’s feet.

“The chairman remains committed to making progress on judicial nominations, but Republicans seem determined to stall the consideration of two of President Bush’s appellate nominees,” Leahy spokeswoman Erica Chabot said. “Nonetheless, Sen. Leahy will continue working to keep vacancies at the lowest levels in years. But cooperation from Senate Republicans and the White House is necessary if that progress is expected to continue.”

Judicial nominations notwithstanding, Reid and Bush have been at a virtual standstill over scores of outstanding appointments to federal boards, commissions and departments.

The backlog in approving those nominations has prompted Reid to make a regular habit of keeping the Senate constantly in session, even during the chamber’s breaks, to prevent Bush from installing any of his executive branch picks while lawmakers are out of town.

Pro forma sessions are likely to rear their heads again with the Memorial Day recess, although Manley said the two sides have begun preliminary talks over whether they can agree to move some of the nominations before Senators head out.

Still, Manley said it is too soon to tell what, if anything, will come of those discussions. “So far, there have been some staff-level conversations,” Manley said. “Not a lot of progress has been made. We’ll see what happens this week.”

White House officials still are looking to negotiate a wide-ranging deal with Reid by the end of the week that would free up most of the logjam on executive branch nominations, beginning with appointees ready for Senate floor consideration on down to those appointees who are stalled in committee.

The administration acknowledges that many of their most incendiary picks — such as Steven Bradbury to be assistant attorney general in charge of the Office of Legal Counsel — are probably off the table this year, and are now focusing on appointments who can attract bipartisan support. One source familiar with what have become regular negotiations between the White House and Reid’s office on nominations said the Bush administration will “continue to push people” worthy of approval leading up to Memorial Day and beyond.

The source said there are dozens of appointees who are worthy of approval, but have fallen prey to what’s become a partisan standoff.

“The bottom line is, politics keeps disrupting the state of play on guys who are noncontroversial,” the source said.

Reid already has indicated that he has stopped confirming GOP nominees whose assignments would tilt control of a particular board or commission to the Republicans and whose terms expire after Bush leaves office in January 2009.

That posture seems to hold even though one of Bush’s most toxic nominees withdrew his name from consideration to the Federal Election Commission on Friday. Hans von Spakovsky’s appointment to the FEC had been in dispute for months, and was at the heart of a broader impasse over seating vacancies on the federal elections board.

Senators are poised this week to begin reviewing at least three other nominees for the panel. Still, Democratic leaders remained steadfast that von Spakovsky’s nomination won’t do much to unlock the broader nominations stalemate: “I don’t see it having any impact,” Manley said. “Each of the nominees has a different set of problems — and it all gets back to the White House’s intransigence. They have been unwilling to deal with Democratic leadership and processing nominees.”

A White House spokeswoman said the administration is is the process of identifying” another highly qualified candidate to serve in this position and we look forward to announcing this candidate as soon as possible.”

Like Bush, Reid has an interest in moving executive branch nominees. Reid has a whole lineup of Democratic picks he’d like seated this year, including his former chief of staff, Susan McCue, to the Broadcasting Board of Governors, and appointments to the Securities and Exchange Commission, Federal Communications Commission and Nuclear Regulatory Commission.