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Three judges are flash points in Senate clash

A vote on their nominations Thursday could lead to long-awaited showdown over the federal courts.

By Staff writer of The Christian Science Monitor / April 20, 2005


With tomorrow's committee vote on three of President Bush's most controversial judicial nominations, the Senate - urged on by some of the most powerful interests in Washington - is poised for a long-awaited showdown over the federal courts.

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Each has been nominated before - and denied a vote on the floor of the Senate based on arguments ranging from incompetence to extremism. But this time, Senate GOP leaders say a Democratic filibuster will not stand. They threaten a rule change that Democrats warn will shut down the Senate.

Until now, Judiciary chairman Arlen Specter (R) of Pennsylvania had moved to a committee vote only those nominations that he expected could win enough bipartisan support to avoid a filibuster. With Thursday's vote, that strategy ends - a move that could signal that the so-called "nuclear option" is imminent. That proposed rule change would lower the number of votes required to end debate on a nomination from 60 to a simple majority. "It does appear that the Republicans are moving forward on the nuclear option," says Jonathan Turley, a law professor at George Washington University Law School. "The White House has clearly decided that it would be better to fight this fight now rather than with a Supreme Court nominee."

By the pound, Priscilla Owen, nominee for the US Court of Appeals to the Fifth Circuit, faces the toughest confirmation fight. Her bulging opposition file, provided by minority Democrats, weighs in at 4.8 lbs and includes letters from more than 40 national groups ranging from Planned Parenthood and Friends of the Earth to the United Auto Workers. The opposition file for Janice Rogers Brown, a nominee to the District of Columbia Circuit, tops 3.5 lbs. In contrast, the file for Terrence Boyle, a nominee to the 4th Circuit, weighs less than a pound.

It's a high-stakes battle, managed with an intensity once reserved for controversial Supreme Court nominees. In addition to the flood of faxes, floor statements, and news releases inside Congress, interest groups are accelerating ad campaigns to engage the public and pressure would-be compromisers on both sides. With at least one vacancy on the Supreme Court expected this summer, analysts say the positioning on these three appeals court nominees is a proxy fight for other battles to come.

"I think there is a realization that the court of appeals are in effect our regional Supreme Courts," says Sheldon Goldman, an expert on judicial nominations at the University of Massachusetts at Amherst. "It's the end of the line for 99 percent of all appeals. And it has become clearer and clearer that these judges have wide discretion in interpreting the Constitution, precedents and statutes."

A filibuster of any one of the president's nominees could provide the context for invoking the nuclear option, but the two women nominees, Ms. Owen and Ms. Brown, are the highest-profile cases.

A justice on the Texas Supreme Court since 1995, Owen has had two confirmation hearings: one in 2002, when the committee was controlled by Democrats, and another in 2003, after Republicans had taken back the Senate.

At that hearing, dubbed "setting the record straight," then-Judiciary Committee chairman Orrin Hatch called her treatment by Democrats a "disgrace to the Senate." Owen was the first nominee with the American Bar Association's highest rating to be voted down by the committee, he said.