Judiciary to Test Post-Partisanship

Posted January 30, 2009 at 6:31pm

President Barack Obama’s stated goal of changing Washington’s partisan ways is likely to face its biggest test once the new Democratic chief executive gets around to nominating judges for the federal bench.

Judicial nominations — a flash point between Senate Democrats and the Bush administration that brought the chamber to a near-standstill more than once — remain contentious. Unlike the principled and respectful disagreement over Obama’s economic stimulus package, Senate Republicans acknowledge that the battle over Obama’s court picks could go nuclear.

Sen. Lindsey Graham (R-S.C.), a member of the bipartisan “Gang of 14” that worked during then-President George W. Bush’s tenure to find compromise on stalled judicial nominees, said Obama’s court selections will be approved as long as the Republicans don’t follow the example Obama set as a Senator.

“If we follow his lead, he’ll be in trouble, because he participated in the filibuster and was not very forthcoming with his vote when it came to judicial nominations,” Graham said in an interview. “I hope, because I was part of the Gang of 14, we can find a process that will get mainstream people through the system — obviously it wouldn’t be people I would pick — that are qualified, not idealogues.

“However, if they go hard left, there will be a problem.”

The reason some Republican Senators are girding for a fight stems from their perception of how Senate Democrats — whether in the minority or majority — treated Bush’s judicial nominees during his eight years in office. That battle included repeated Democratic filibusters of particular nominees, to the point where Republicans considered eliminating the parliamentary tool from the Senate rules altogether.

The Gang of 14 intervened, however, and negotiated a compromise whereby the filibuster remained intact in exchange for up-or-down votes on a series of Bush’s court picks.

Republicans believe the Democrats often blocked well-qualified, mainstream nominees, falsely labeling them as idealogues, simply to prevent Bush from filling court vacancies with philosophically center-right judges who believe in interpreting the Constitution as opposed to legislating from the bench.

Democrats reject that characterization, contending they were far more generous to Bush then the Republican Senate majority was to then-President Bill Clinton from 1995 to 2000. Based on conversations he’s had with the president and administration officials, Senate Judiciary Chairman Patrick Leahy (D-Vt.) said he doesn’t expect major problems in confirming Obama’s judicial nominees.

“What [Obama] wants to do is get away from what the Bush administration did. They wanted to politicize the federal bench,” Leahy said. The Obama administration “wants to have the best federal bench possible, and get it out of being a political bench, like it was with Bush.”

Republicans recognize that with just 42 Members at best, depending on the outcome of the delayed Minnesota Senate race, they do not have the numbers to regularly sustain filibusters of Obama’s judicial nominees. GOP leaders are not inclined to pick a fight with Obama or draw some sort of line in the sand before the president has made his first nomination or revealed his approach to confirmations.

One senior Republican Senate aide said Obama could help pave the way for a friction-free process by offering an olive branch to the Senate GOP Conference, such as re-nominating a few of Bush’s court nominees who failed to win approval before the Republican’s second term ended last month.

Among the nominations that could smooth things over with Republicans are Glen Conrad, who Bush picked to serve on the 4th Circuit Court of Appeals, Paul Diamond, nominated to the 3rd Circuit, and Peter Keisler, nominated to the influential D.C. Circuit. Bush, this senior GOP aide said, re-nominated previous Clinton picks after he took office in 2000.

But it’s Obama and his approach to judicial nominations and the confirmation process that will ultimately determine whether the president’s hope for a less partisan Washington materializes, argue the Republicans. The White House did not respond to a request for comment on Friday.

“We’re looking forward to working with the White House,” said Sen. John Cornyn (Texas), who is chairman of the National Republican Senatorial Committee, a member of the Judiciary Committee and often at the forefront of judicial issues. “We’re going to expect a negotiated procedure with the White House because we can stop nominees by not returning a blue slip,” an opinion on a nominee from his home-state Senator.

If Obama consults with Republicans before dropping a nomination on the Senate — and if he selects judges with a history of “interpreting” the Constitution — the GOP Conference is likely to back the president’s picks, even if they are philosophically center-left, GOP Senators say.

Republicans argued that should Obama nominate individuals whom the Republicans deem as having a record of “legislating from the bench” and treating the Constitution as a “living, breathing” document, parliamentary tools such as blue slip holds could be employed to block confirmation.

Sen. Arlen Specter (R-Pa.), ranking member on the Judiciary Committee, said he does not believe in filibustering nominees and plans to keep an open mind, but he indicated a certain type of judge could cause him to hold things up.

“We’re going to closely examine the nominees — intend to ask pointed questions and do our best to determine qualification,” Specter said. “Qualified means you interpret the law, you don’t act as a super legislature.”

Republicans interviewed, including Sen. Orrin Hatch (Utah), acknowledged the desire for payback among some GOP Senators for how Democrats, in their view, treated Bush’s nominees during his two terms, although they insist those sentiments are unlikely to drive how the Conference treats Obama’s picks.

However, a few Republican Senators, not to mention the GOP-aligned activist groups, are not the only potential problems that Obama faces as he begins to consider his nominations to the federal bench.

Democratic Senators who hail from conservative-leaning states — which there are considerably more of after the Democrats picked up 13 Senate seats over two election cycles — might also present a problem for the new president.

Sen. Ben Nelson (Neb.), a moderate from a decidedly Republican state who was often one of the few Democrats to support Bush’s nominees even as his Conference was almost universally opposed, said what he looks for in a judge hasn’t changed simply because he now shares the same political party as the president.

“I don’t want activist judges,” Nelson said. “Maybe you provide some deference for the Cabinet members. I don’t think you provide deference for judicial appointments. They’re lifetime appointments.”