Bush's judicial nominees quietly winning approval

While Estrada, Owen face tough opposition, others get Senate nod

April 27, 2003|By Nick Anderson | Nick Anderson,SPECIAL TO THE SUN

WASHINGTON - With their blockade of one of President Bush's judicial picks holding firm, Senate Democrats are preparing to escalate the ideological conflict by taking another stand against a controversial appellate court nominee.

But the logjam over other Bush nominees may be breaking: One long-stalled federal court choice is headed for Senate approval, and two others are waiting in the wings.

The developments signal a new phase in the long-running partisan battle over the judiciary, nearly two years after Bush announced his first slate of nominees in an attempt to shift the courts toward the right.

To a large extent, the president is succeeding. His victories have been overshadowed by the extended Democratic filibuster against Washington lawyer Miguel A. Estrada and the floor fight now building against Texas Supreme Court Justice Priscilla R. Owen, both appellate court nominees.

The imminent confirmation of Ohio lawyer Jeffrey S. Sutton to a federal appellate judgeship is the latest example of Bush's power to move his conservative picks through the narrowly divided Senate.

And both Democrats and Republicans say that two other much-debated Circuit Court nominees, Ohio Supreme Court Justice Deborah A. Cook and Washington lawyer John G. Roberts, are expected to clear the Senate soon.

118 confirmations

Since Bush took office in January 2001, 118 of his judicial nominees - more than 14 percent of all active judges - have been confirmed. For the 51 seats that are vacant, the president has put forward 38 nominees.

The president's strength will be tested further if a Supreme Court seat opens up through a resignation, perhaps as soon as this summer. The Senate has not considered a high court nominee since Justice Stephen G. Breyer's confirmation in 1994 - the longest such hiatus in the court's history.

Democrats, reluctant to challenge Bush nominees across the board, are waging ideological fights in selected high-profile cases where they believe that they can make a political point and win. Republicans, in the Senate majority, are fighting loudly on those fronts - but are also quietly counting their gains and laying plans for more.

"We're working on many tracks here," said Sen. Jon Kyl, an Arizona Republican and member of the Judiciary Committee. "Each of these [nominees] we're trying to push on down through the process to get them to completion."

Liberal interest groups tracking the judicial nominations despair of the trend in Bush's favor.

"It's sad that not all of these nominees can be filibustered," said Kate Michelman, president of NARAL Pro-Choice America, an abortion-rights group. "But the reality is they can't be and they won't be."

Democratic attacks

Last year, when they held the majority in the Senate, Democrats defeated two Bush appellate court nominees in committee - Owen and U.S. District Judge Charles W. Pickering Sr. of Mississippi.

Democrats attacked Owen as a conservative "judicial activist" biased against workers and women's rights; they denounced Pickering for his handling of such racial controversies as a cross-burning case.

Several other nominees languished in committee in 2001 and last year, although the Senate, under Democratic leadership, did confirm 100 judges nominated by the president.

Bush strenuously defended all his nominees as well-qualified and attacked Democrats as obstructionist. Thanks in part to the president's campaigning, Republicans retook the Senate in the fall elections, and GOP leaders pledged swift action on stalled nominees.

Winning confirmation of Estrada's nomination became a top priority. The native of Honduras, nominated in May 2001 to the influential U.S. Circuit Court of Appeals for the District of Columbia, was one of Bush's first judicial selections. But Republicans have failed four times to muster the 60 votes required under Senate rules to force final action on his nomination. Only 55 senators have voted to shut down the filibuster - all 51 Republicans and four Democrats.

Democratic leaders, calling Estrada a "stealth" conservative who has dodged important questions, have shown no sign of relenting. Instead, they have challenged Republicans to schedule a vote on Edward Prado, a Texas judge whom Bush nominated in February to the U.S. 5th Circuit Court of Appeals. Republicans, saying that Estrada has been waiting far longer for consideration, dismiss what they call a Democratic ploy to pander to Hispanics.

As the deadlock over Estrada continues, the Owen nomination is emerging as another major battle. Democrats spurned a Republican bid this month to schedule a vote on her confirmation.

Asked how many hours would be acceptable to end debate on the nomination, Sen. Harry Reid of Nevada, the Senate's second-ranking Democrat, replied that in his view, "there is not a number in the universe that would be sufficient."

While Democrats say they have not made a final decision on whether to filibuster Owen's nomination, liberal groups are mobilizing against her in the same way they did to block Estrada. They accuse Owen of undermining abortion rights in her rulings as a state judge. Her supporters say she has been rated unanimously as "well-qualified" by the American Bar Association.

An Owen filibuster would strain partisan relations further at a time when the Senate could soon face a Supreme Court nomination battle. Before the Estrada blockade began, the last judicial nomination to be rejected by filibuster was President Lyndon B. Johnson's effort to elevate Supreme Court Justice Abe Fortas to chief justice in 1968.

Nick Anderson is a reporter for the Los Angeles Times, a Tribune Publishing newspaper.

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