No let-up in battle over court nominees

White House, Democrats in ideological fight over federal bench candidates

April 07, 2002|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - Neither the White House nor Senate Democrats are giving any quarter in their battle over what kind of judges should sit on the federal bench, and officials on both sides say they expect more confirmation fights in the months ahead.

The first confrontation could be over any of several conservative nominees. One possibility, both sides say, is President Bush's declared choice of Priscilla Owen, a conservative justice on the Texas Supreme Court, for a federal appeals court post. Owen is an opponent of abortion rights for minors without their parents' permission.

The Democrats on the Senate Judiciary Committee banded together last month to defeat the nomination of Charles W. Pickering of Mississippi to a seat on the federal appeals court based in New Orleans, provoking denunciations from Republicans.

Some Democrats were blunt about what they hoped to accomplish. Sen. Charles E. Schumer of New York said that in opposing the Pickering nomination they were sending a message to the White House that Bush should stop trying to stack the courts with conservatives.

"The administration has made ideology a major factor in their selection of judges," Schumer said in an interview. "I think it's fine that ideology is being debated more openly now."

But he added that the Judiciary Committee would not accept the administration's judicial nominees unless Bush broadened their ideological range.

The chief lawyer in the White House, however, rejected the idea that Bush would change his approach to choosing judicial nominees.

"The president has made very clear he has definite ideas about the kind of people he wants to fill the judiciary," said Alberto R. Gonzales, White House counsel, in an interview. "The intention here is to keep sending up people like the ones we have sent up who we believe are qualified and in the mainstream."

On a recent campaign swing through the South, Bush said he wanted a Republican-controlled Senate so he could put conservatives on the bench.

Gonzales said the president is naming lawyers to the bench who are chosen for competence, character and a judicial philosophy that respects precedent and believes in judicial restraint.

But Bush's use of the word "conservatives" in his campaign appearances was unusually direct.

Republicans have generally shown themselves willing to take casualties in their efforts to shape the federal bench to their liking. Though Bush suffered a defeat with the Pickering nomination, the Republican Party is trying to extract political advantage from the experience.

Bush has tried to use the issue against Sen. Max Cleland, a Georgia Democrat who is running for re-election, and a Republican strategist said he expected the Pickering issue to play a role in several races in the South. One Republican Senate candidate, former Gov. Lamar Alexander of Tennessee, has broadcast a television advertisement arguing that the treatment of Pickering was unfair to the South.

Democrats on the Judiciary Committee, which holds hearings on all judicial nominees, have also tried to send their message by arranging the order in which they will consider Bush's nominees, delaying votes on those they consider most conservative. To that end, the Democrats, who control the committee, are generally planning to schedule hearings and votes on those Bush nominees they consider more acceptable, such as James Howard of New Hampshire, who has been nominated for a seat on the 1st U.S. Circuit Court of Appeals in Boston.

Howard is considered a moderate candidate, Democratic staff aides said. Others whom committee members consider less ideological, and who therefore might get early consideration, include Julia Smith Gibbons and John M. Rogers, both nominated for seats on the 6th U.S. Circuit Court of Appeals in Cincinnati.

Eventually, the committee will run out of such candidates and will have to deal with some of the more outspokenly conservative nominees.

The committee might soon take up Bush's nomination of Owen of the Texas Supreme Court to a seat on the 5th U.S. Circuit Court of Appeals, in New Orleans, the same court to which Pickering was named. Owen is generally viewed as a member of the conservative wing of a conservative state Supreme Court.

In addition to objecting to her views on abortion rights, liberal advocacy groups have raised questions about the relationship of Owen's opinions to donations she received from Texas corporations, including Enron, the Houston energy giant that filed for protection under Chapter 11 of the bankruptcy law.

Owen, who was elected in 1994 with the help of an $8,600 donation from Enron, later wrote a majority opinion that reversed a lower court order, saving the company about $225,000 in taxes.

Sen. Patrick J. Leahy, a Vermont Democrat and the chairman of the Judiciary Committee, recently sent a series of questions to the White House asking for comment on any relationship between the donations and her rulings.

Gonzales said that he had examined the issue and found nothing improper on Owen's part. He said he would soon write to Leahy outlining his position.

But opponents of Owen are certain to recall a dispute that arose in 2000, when Gonzales was a fellow justice on the Texas court and Owen was one of three court members who wrote dissents in a case involving a new Texas law about parental notification of abortions among minors. At the time, Gonzales suggested that the narrow reading of the law by the dissenters was "an unconscionable act of judicial activism."

Anne Womack, a spokesman for Gonzales, minimized the significance of the disagreement. "Judge Gonzales' opinion and Justice Owen's dissent reflect an honest and legitimate difference of how to interpret a difficult and vague statute," Womack said.

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