Democrats could block court nominations

November 12, 2006|By New York Times News Service

WASHINGTON -- The impending Democratic takeover of the Senate, lawmakers and administration officials agree, will produce a vast change in an area that has produced some of the sharpest partisan battles in recent years: President Bush's effort to shape the federal bench with conservative judicial nominees.

There is a strong consensus that the four most conservative of Bush's nominations to the federal appeals courts are now dead. Republicans and Democrats say the four have no chance of confirmation in the next several weeks of the lame-duck congressional session or in the final two years of Bush's term.

The nominees are William J. Haynes II, the Pentagon's chief lawyer who was responsible for the much-criticized military interrogation policies; William G. Myers III, a longtime lobbyist for the mining and ranching industries and a critic of environmental regulations; Terrence W. Boyle, a district court judge in North Carolina; and Michael B. Wallace of Mississippi, a lawyer who was rated unqualified for the court by the American Bar Association.

For the past six years, the relationship between Senate Democrats and Bush has been marked by unremitting rancor and suspicion. The Constitution gives the Senate the power to confirm or decline a president's judicial choices; although Senate Democrats were in the minority for much of Bush's term, they took the unusual step of waging filibusters to block several of the president's nominees who they said were too conservative.

With that foundation of hostility, there is deep uncertainty now as to how Bush and the Democratic Senate will deal with each other come January.

Some Democrats say that how Bush handles judicial nominations will provide an early test of his pledge to compromise and de-emphasize partisanship. It will be significant, they say, whether he chooses to renominate his four most conservative choices in the next Congress, hoping for political reasons to paint Democrats as obstructionist, or instead drops them and tries to reach compromises.

Ronald A. Klain, a former Democratic chief counsel for the Judiciary Committee and the White House counsel in charge of judicial nominations for President Bill Clinton, said Bush and the Republicans faced a decision with important implications.

"The Bush administration has played the game of judicial selection very hard and very far to the right for the past six years with little moderation," Klain said. "They have to make a fundamental decision now as to how they want to deal with this. Do they move to the center or stay true to the right?"

A senior Democratic strategist in the Senate said his party was eager to see which direction Bush chose on judicial nominations.

"Those guys in the White House have governed unilaterally for six years," said the official, who spoke on the condition of anonymity. "It's been their way or no way, show no quarter."

"Does he pivot and become like he was as Texas governor and work with both sides of the aisle," the official said, "or does he send up these guys again and set us up for hard votes and call the Democrats obstructionist?"

That had been a political tenet of the White House. The administration had a no-lose situation in naming staunch conservatives to the bench: Their choices would either be confirmed or their defeat would provide a strong campaign issue.

Sen. Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, said this week that he thought Democrats were overreaching in viewing Bush's actions as a test.

"The last time I read the Constitution, the president has the power to nominate whomever he wants," Specter said. "The Democrats don't have to vote for those people, but I don't see it as a sign of truculence or defiance if he nominates people they won't vote for."

Specter said he hoped to move forward on other Bush nominees who were less controversial than those four. He said Peter M. Keisler, a senior Justice Department lawyer nominated to a seat on the appeals court in Washington, should be considered quickly.

"I don't know of any substantive objection to his nomination," Specter said. "It's not good public policy to hold someone up without cause."

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