Judicial Selection Monitoring Project Coalition for Judicial Restraint Weekly Update for 4/27/01 Volume IV, Number 5 Published by the Center for Law & Democracy at the Free Congress Foundation. Thomas L. Jipping, M.A., J.D., Director John A. Nowacki, Esq., Deputy Director Jason Koehne, Coalition Coordinator (e-mail: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> ) Phone: 202-546-3000 Fax: 202-543-5605 http://www.freecongress.org/ <http://www.freecongress.org/> ************************************************** IN THIS ISSUE: * Democrats Lay Groundwork To Block Judicial Nominations. * Judicial Nominations Expected To Begin In The Next Few Weeks. * For Edwards, Confirming N.C. Nominees Is Suddenly Less Urgent. * Potential Nominee Cox To Meet With Feinstein. * Commentary: Judging The Future. ************************************************** Democrats Lay Groundwork To Block Judicial Nominations Judiciary Committee Democrats blocked committee votes on the nominations of Ted Olson to be U.S. Solicitor General and Larry Thompson to be Deputy Attorney General on Thursday, and they have threatened to block judicial nominations as well unless Senator Hatch guarantees that both home-state Senators approve a nominee before the committee proceeds on the nomination. The dispute centers on the blue slip policy. Home-state Senators signify their approval of a nominee by returning a blue form to the Judiciary Committee, or their disapproval by not returning the slip. According to a Judiciary Committee report, the policy operates under the premise that home-state Senators are uniquely positioned to be familiar with a nominee from their state, and therefore should be accorded special deference--even before the committee considers the nominee. When Democrats controlled the committee under Senator Joe Biden of Delaware, only one home-state Senator was needed to approve a nomination. Current chairman Orrin Hatch (R-UT) has said that he will follow Biden's lead, although Hatch reportedly changed the policy to require approval from both home-state Senators after Republicans won control of the Senate in 1995. Democrats, however, are insisting that if both home-state Senators do not return the blue slip, they will block that nominee from moving forward. When asked on NPR whether that means that Democrats will filibuster nominees, ranking Democrat Patrick Leahy (VT) answered: "Well, we'll just see what happens." A recent National Post report on the issue said that Leahy was seen yelling at Hatch about the matter in the Senate cloakroom earlier this week. White House Counsel Alberto Gonzales has said that the White House will consult Senators regarding nominations. "They want to be consulted and advised. It's important for them vis-�-vis their constituents," Gonzales said in an NPR interview. "I have been meeting periodically now for the past month and a half with members of the Judiciary Committee to introduce myself, to solicit their input, get their advice, ask for their help in getting the President's nominations." Democrats, though, want consultation to include notice of the intent to nominate an individual, and have indicated that failure to provide that notice would be a breach of "good faith" and justification for the filibuster of a nomination. ************************************************** Judicial Nominations Expected To Begin In The Next Few Weeks With 99 vacancies on the U.S. Courts of Appeals and the U.S. District Courts, President Bush will reportedly send as many as 40 judicial nominations to the Senate by the early part of next month. Several newspaper reports have also indicated that the nominees are going through FBI background checks as the final step before their nominations are formally submitted. A recent Washington Post report listed several people who may be nominated for various circuit judgeships, including Miguel Estrada, John Robert, and Sharon Prost for the D.C. Circuit, and Peter Keisler for the Fourth Circuit. Estrada is a former clerk to Justice Anthony Kennedy, now in private practice with Gibson, Dunn & Crutcher in D.C. Roberts is a former Rehnquist clerk, now with the Hogan & Hartson firm. Prost is the deputy chief counsel on the Senate Judiciary Committee. Keisler, who clerked for Justice Kennedy and former circuit judge Robert Bork, is a partner at the Sidley & Austin law firm. Other potential nominees have been mentioned in various newspaper reports, including U.S. District Judge Dennis Shedd of South Carolina for the Fourth Circuit and federal magistrate judge Terry Wooten of South Carolina for a district judgeship. A recent Associated Press report indicated that the success of a Shedd nomination could hinge on whether President Bush renominates Bill Clinton's recess appointee Roger Gregory to the Fourth Circuit. The report stated that the House of Representative's Congressional Black Caucus has threatened to somehow hold up any white nominee to the Fourth Circuit if Gregory is not renominated. Gregory's recess appointment expires in January. According to the AP, Senator Strom Thurmond's (R-SC) office expects Bush to include Gregory and another black nominee to the Fourth Circuit in whatever nominations he sends to the Senate. ************************************************** For Senator Edwards, Confirming N.C. Nominees Is Suddenly Less Urgent Senator John Edwards (D-NC) has toned down his rhetoric about the need to get a North Carolina judge on the U.S. Court of Appeals for the Fourth Circuit, the Raleigh News & Observer recently reported. There are currently no judges from North Carolina on the court. During the Clinton administration, Edwards was outspoken in his desire to see a North Carolinian on the Fourth Circuit bench. In August of 1999, for example, the Charlotte Observer quoted Edwards as saying "My strong feeling is that North Carolina deserves representation on the Fourth Circuit." On that same day, the Raleigh News & Observer reported that Edwards had said it was "critically important that North Carolina gain another judge on the Fourth Circuit." Now that Bill Clinton is no longer President, the critical situation is no longer quite so critical. "It depends on who [the nominee] is, of course," Edwards said this week. The Senator suggested that in order for him to support a Republican nominee from North Carolina, President Bush would have to package the nomination with that of unconfirmed Clinton nominee James Wynn--a state judge with an activist record--or some like-minded nominee. Edwards also indicated his willingness to filibuster judicial nominees on Wednesday's edition of the NPR Morning Edition program. Two potential North Carolina nominees mentioned in connection with the Fourth Circuit are Bill Webb, a federal magistrate judge, and Terrence Boyle, the Chief Judge of the U.S. District Court for the Eastern District of North Carolina. Boyle is a Reagan appointee nominated by the first President Bush to the Fourth Circuit but denied a hearing by Judiciary Committee Democrats. Webb was a member of the Equal Opportunity Commission with Clarence Thomas. ************************************************** Potential Nominee Cox To Meet With Feinstein California Representative Christopher Cox (R-47th), reportedly a likely nominee to the U.S. Court of Appeals for the Ninth Circuit, will meet next week with California Senator Dianne Feinstein (D) to discuss his potential nomination. Feinstein has so far declined to comment on the possible nomination because Cox "has not been nominated yet." "I have not made up my mind," Feinstein said recently. "He asked to see me." Feinstein's support is important for the nomination, given the weight placed on home state Senators' evaluations of judicial nominations. California's other Senator, Democrat Barbara Boxer, has already been critical of a Cox nomination. Referring to Cox's 95 percent rating from the American Conservative Union and his 100 percent rating from the National Right to Life Committee, Boxer said she was "surprised that President Bush would consider someone so far outside the mainstream when he had promised to govern from the middle, especially when there are so many well-qualified moderate Republican candidates out there." Cox graduated with honors from Harvard Law School and then clerked for Judge Herbert Choy on the Ninth Circuit. He has declined to be interviewed about the nomination. Another potential nominee to the Ninth Circuit, Los Angeles County Superior Court Judge Carolyn B. Kuhl, has not generated much comment. Kuhl worked at the Justice Department during the Reagan administration. She is an honors graduate of the Duke Law School and a former clerk for then-U.S. Circuit Judge Anthony Kennedy on the Ninth Circuit. ************************************************** Commentary: Judging The Future By Thomas L. Jipping Though the winds of judicial selection are starting to blow, no one has yet invented some kind of Doppler radar to help predict such political weather patterns. In fact, those notoriously inaccurate evening news weathermen often have a better record than judicial selection analysts. Even so, it's worth trying to take a look ahead. One confident prediction is that judicial nominations and confirmations will happen this year. The appointment average for new presidents in their first year is about half the overall annual average over the past two decades (25 vs. 49). The low point was in 1989 when the Democrat Senate confirmed just 15 of President George Bush's nominees. Yet President George W. Bush will soon begin sending his nominees to the Senate, which will confirm some of them. The pressure is building to do so. Nearly 100 positions on the federal bench stand vacant today and natural attrition produces a certain, if not steady, stream of new vacancies. The new administration has established a team and a process for selecting nominees to fill them. We so far know only how Mr. Bush has generally described the judicial legacy he intends to build: judges who interpret, rather than make, the law. The specific legacy will consist of his actual nominees. Suffice it to say that this year will certainly produce judicial selection activity. Predictions about the Supreme Court are far more risky. Though it considers just 1 percent of the cases appealed to it each year, the highest court in the land remains the primary focus of attention for the media, interest groups and analysts. On April 19, Matt Drudge said the Bush administration "is planning for the possibility that two ... Supreme Court justices may retire this summer." He said Justices John Paul Stevens, appointed in 1975 by President Gerald Ford, and Sandra Day O'Connor, appointed in 1981 by President Ronald Reagan, "are believed to be in a race to be first to step down from the bench." Drudge never identified those who believe this, and the very next day Joan Biskupic wrote in USA Today that Justice Stevens "does not seem to be interested in leaving the bench." The day after that, the New York Times' front page reported that conservative and liberal interest groups "are busily preparing for the possibility of a Supreme Court vacancy, perhaps as early as summer." The court's current term is its seventh with the same slate of justices, the longest stretch without a new appointment since 1823. It would in any case be irresponsible for the Bush team never to speculate about possible scenarios, develop any contingency plans, or consider strategies for such an important event. Some vivid political facts mean Mr. Bush will need a strong backbone and a clear commitment to principle to appoint the kind of Justices he has identified. Democrats have always been more aggressive than Republicans in advancing their vision for the judiciary. This is no doubt because they depend on a politicized, activist judiciary to deliver much of their political agenda. After the narrow confirmation of Attorney General John Ashcroft, they announced they would oppose nominees not likely to decide cases to their liking. This strategy of demanding judicial IOU's from nominees stands in stark contrast to what these same senators said when a Democrat president was sending them nominees. On March 17, 1998, for example, Senator Patrick Leahy, D-Vt., warned in a Senate floor speech against heading down "a road toward an ideological litmus test that does not well serve the Senate, the courts or the American people." On July 27, 2000, he told his colleagues that "we need to get away from rhetoric and litmus tests." Different day, different ox being gored. Don't look for consistency here. Democrats imposing the same ideological litmus test they once condemned is a sure thing at the next Supreme Court vacancy. That this demand of nominees to violate their oath of impartiality before they take it directly assaults judicial independence is of no consequence. And groups once obsessed with defending judicial independence from even phantom threats -- from the American Bar Association and American Judicature Society to People for the American Way and Citizens for Independent Courts -- are totally silent. Another political fact complicating the confirmation picture is that the Senate is not only split 50-50 between the parties, but a handful of Republicans are as liberal as most Democrats. Still, Senate Republicans in 1997 adopted a resolution condemning judicial activism, and Mr. Bush's nominees likely will represent a very different judicial philosophy. Aggressive Democrats seeking a more political judiciary and an evenly divided Senate with several liberal Republicans make the next Supreme Court vacancy perhaps the most important domestic leadership opportunity for our new president. No matter what the liberal media say, most Americans would agree that they, and not unelected judges, should run the country and define the culture. "We the people" should once again mean something. If he ignores the speculators and would-be intimidators and promotes a judiciary that follows rather than fashions the law, Mr. Bush can truly establish a legacy of freedom. Thomas L. Jipping is Vice-President for Legal Policy at the Free Congress Foundation. This article may also be found on WorldNetDaily at http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22583 <http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22583> . His WorldNetDaily column appears on Thursdays. **************************************************
