Bush's looming battle: filling federal bench

Scores of Clinton picks were blocked by the GOP. Now, tables may turn.

When the Bush administration begins its rollout of nominees to the federal bench over the next few weeks, the Democratic opposition could find themselves up against an unlikely enemy: their own words.

For weeks now, the conservative Free Congress Foundation has been quietly and methodically compiling a stack of statements by Senate Democrats during the Clinton administration calling for the prompt filling of judicial vacancies, with plans to use it when President Bush makes his selections.

"We're going to look at what their position was when a Democrat was sending them nominees they liked. They said it was a 'crisis' at 70 vacancies - what is it [now] at 100?" says Tom Jipping, director of the foundation's Center for Law and Democracy. "Now all of a sudden it's slowdown time at the farm."

To many on the right and left, filling the 99 vacant slots on the federal bench represents the most critical undertaking Mr. Bush will face over the next four years. Tax cuts are temporary. Environmental policies can be reversed. But Bush's judicial appointments will continue to shape America's laws for years after he has left office.

For this reason, fights over the federal bench have become increasingly bitter over the past 20 years - and for Bush, they're likely to get worse.

The Senate, now evenly divided between Democrats and Republicans, must confirm a president's selections. And some Democrats have expressed anger - and long memories - over how Bill Clinton's nominees were treated. Indeed, the Republican majority's refusal of Clinton nominees is one reason Bush is now faced with so many vacancies.

"Under Clinton, people would be nominated and suddenly an anonymous call would come in with some claim, and the nominee was dropped," says Robert Carp, a political scientist at the University of Houston who has studied President Clinton's nominees, as well as Bush's nominees from when he was Texas governor. "A lot of Democrats are saying it's payback time."

For those wondering what the court fights might look like, the best answer may lie in the recent past. Many of the same groups that came together to fight the confirmation of Attorney General John Ashcroft from a variety of fronts - civil rights, abortion rights, and gun control - will likely be working together again.

"These are groups that have worked together before, and we work together well," says Marcia Kuntz, director of the Alliance for Justice's Judicial Selection Project, a liberal group that studies the federal bench. "There is a long list of people we're concerned about, and, if they're nominated, we'll fight them."

The National Abortion Rights Action League last week sent out more than 1 million pieces of mail to alert its members to what it calls Bush's "betrayal." NARAL has also been running pro-abortion-rights television ads for months, hinting that those rights are in danger.

And while Million Mom March President Mary Leigh Blek says her gun-control organization has not yet been paying close attention to court nominations, she adds that "the moms won't be afraid to speak up" if a name comes up that they don't like.

Many of these groups are even more on guard in light of Bush's recent decision to end the customary practice of screening judicial choices with the American Bar Association. (While the ABA is officially nonpartisan, some conservatives feel it leans left.) The Alliance for Justice called it "an alarming sign that [Bush] intends to place ideological purity above all other criteria."

Ms. Kuntz says the alliance will be looking especially hard at appeals court nominees - there are currently 31 vacancies - because their rulings are often the last word (most cases don't reach the Supreme Court). Also, she points out, judges picked for those slots may become future Supreme Court nominees.

None of this surprises Mr. Jipping. "This is all just girding for the Supreme Court - that will be the real battle," he says. "I suppose in the end they'll select one or two [federal nominees] to attack."

The mobilizing of liberal groups has in part led Jipping and other conservatives to revive a coalition that specifically studies the federal courts. The group will man the phones when specific nominees come up and push the conservative court agenda more quietly at other times.

Still, Jipping admits it will be difficult in the 50-50 Senate for Bush to get anyone other than moderate conservatives confirmed. "The reality is that any administration will consider the substance of the nominee along with the political environment in which the nomination takes place," he says.

In fact, some argue that Bush may find the evenly divided Senate helpful. Mr. Carp says it could allow Bush to nominate three or four strong conservatives who will please the right, but who will likely not get through confirmation. Bush would then be able to tell conservatives he tried, but he needs to fill the courts' positions so that their work can go forward.

Such a move would leave the president looking strong but flexible - precisely the image he wants to project. But there are risks as well, Carp says. "The question is, will conservatives hold it against him and say he should have fought harder? That's hard to know."

Although he does not know everyone on the president's short list, Carp is familiar with some of the names he's heard, and says they are mostly moderates - much in line with Bush's various appointments as Texas governor. "These were not a bunch of Pat Buchanans," he says. "They were a pretty good cross-section of the Texas population."

Out of the 3,000 people Bush appointed to state government positions in Texas, more than 1,000 were women, Carp says, and 250 were black.

(c) Copyright 2001. The Christian Science Monitor

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