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Battle looms over judges

THE BALTIMORE SUN

WASHINGTON - New blood might soon mix with old grudges as George W. Bush prepares to send his first batch of judicial nominees to the Senate for confirmation, triggering what could be the next big battle of his presidency.

As Bush moves to fill nearly 100 vacancies in federal district and appellate courts, Democratic senators are serving notice that they expect to play a major role, not only in the confirmation of judges, but also in their selection.

The Democrats have made it clear that in a Senate divided 50-50, they do not intend to passively approve judges in the mold of Antonin Scalia and Clarence Thomas, the Supreme Court's most conservative justices and the ones Bush has said he most admires.

Republican senators have said they are ready to fight for Bush's nominees, despite the razor-thin margin they hold by virtue of Vice President Dick Cheney's power to break deadlocks.

Eagerly awaiting the first set of nominees, likely to be submitted this week, are battle-tested networks of interest groups arrayed on both sides of such issues as abortion, affirmative action and civil rights.

Those groups, many of which have been squaring off since the 1987 slugfest over the failed Supreme Court nomination of conservative Robert H. Bork, are mobilizing in anticipation of confirmation disputes.

For Bush, as for any occupant of the White House, the power to appoint members of the federal bench allows him to place his stamp on the nation because any of his appointees who are confirmed are likely to be interpreting the country's laws for decades to come.

There are 834 federal district and appellate judgeships. Bush took office with 94 vacancies to fill, more than any other incoming president has had except Bill Clinton, who had 117 in 1993.

"You're talking about 10 percent of federal judges in this country," said G. Calvin Mackenzie, a professor at Colby College in Maine who studies presidential appointments. "Controlling who they are has a greater impact on public policy than anything the government does. Think about it: affirmative action, abortion, environmental policy. Think about how much of that gets made in courts."

Democrats have fresh memories of Republicans' tactics when Clinton tried to get his judicial choices confirmed. Saying Clinton was trying to stack the federal bench with liberal judges, GOP senators blocked some nominations, delayed others and allowed vacancies to remain unfilled in hopes that a Republican would gain the White House.

Retribution could be near.

Senators on the Judiciary Committee, which handles judgeships, have begun jockeying for advantage even though no nominations have been made public. Last week, committee Democrats stalled the confirmation of two Bush appointees to the Justice Department to protest what they said was a change in policy by Republican Senate leaders - working with the White House - that would diminish the power of senators to block nominations from their home states.

"Many of us think they are going to try to abrogate the Senate's role in choosing judges so that they can create the most ideological bench that we have seen in America ever," said Sen. Charles E. Schumer, a New York Democrat. "Why else change a process that is time-honored?"

Judiciary Committee Chairman Orrin G. Hatch said Democrats want "an absolute veto of President Bush's nominees for any reason."

"The president has the constitutional power and duty to appoint nominees," the Utah Republican said. "Nowhere in the Constitution does it allow one single senator to veto this presidential prerogative."

Since the fight over Bork, antagonism has built up between the parties, the latest resulting from Bush's selection of conservative John Ashcroft as attorney general.

The tenor of the early debates might foretell the depth of hostility likely to greet a Bush nomination to the Supreme Court.

One or more justices are expected to step down in the next several years, though no retirements seem imminent.

Bush has said he would not use a prospective Supreme Court nominee's stance on divisive issues such as abortion as a "litmus test" in deciding whether to appoint that person.

"The voters will know I'll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy," Bush said during the 2000 campaign. "I don't believe in liberal, activist judges. I believe in strict constructionists."

The president's advisers have said Bush is using the same standard in choosing nominees for lower courts.

Democrats are skeptical of the term "strict constructionist," viewing it as a code term for judges who see no legal basis for abortion rights or affirmative action, among other things, in the language of the Constitution.

If Bush wants to get his nominees confirmed, some observers say, he might have to find a middle ground, providing Republicans with conservative nominees, but perhaps not so conservative that he provokes retaliation from Democrats.

Not everyone agrees. Despite the divided Senate, many Republicans say, the president has no need to veer from his judicial philosophy when it comes to naming judges.

"I don't think there's any reason why they should pull punches," said C. Boyden Gray, who was White House counsel to President George Bush. Gray pointed out that Democrats controlled the Senate during all of that Bush presidency, but Republicans were able to push through nominees.

Many observers say the first slate of Bush nominees will be diverse, an early gesture to mollify Democrats.

"What he's going to come out with is a mix of people, some who will be characterized as moderate and some who will be characterized as conservative," said Daniel Troy, a lawyer active in the Federalist Society, a conservative group that favors limited government.

Bush might, for example, nominate conservative Washington lawyer Peter D. Keisler, a Bethesda resident, to the 4th U.S. Circuit Court of Appeals to fill an opening created by the death of liberal Baltimore Judge Francis D. Murnaghan Jr. Both of Maryland's Democratic senators oppose Keisler.

But Bush also is expected to nominate Virginian Roger Gregory to a 4th Circuit seat. Clinton, in his final month as president, gave Gregory a temporary appointment, making him the first black to serve on that court. Democrats have insisted that Bush make the appointment permanent, a relatively easy move by Bush because Virginia's two Republican senators have also been lobbying on Gregory's behalf.

Still, Democrats say Bush has made it clear that he will not hesitate to pick a fight. Their prime example is Bush's decision in March to break a tradition, dating to the Eisenhower administration, of having the American Bar Association screen potential judicial nominees for the White House.

Though some of Bush's Republican predecessors - including President Ronald Reagan and Bush's father - considered the ABA a liberal-leaning organization, they never scaled back its favored role in the selection process. Bush eliminated that role.

The White House is said to be receiving advice on prospective nominees from members of the Federalist Society, which has been gaining influence in conservative circles in recent years.

"There's no question that the right wants to pack the federal bench with right-wing ideologues," said Ralph Neas, president of People for the American Way, a liberal interest group. "This is a moment the right wants to seize while it's still in control. This is the big prize."

History shows that much depends on the Congress a president is dealing with. Reagan, who had a Republican Senate for six of his eight years, was more successful at getting nominees confirmed than was Clinton, who had a Democratic Senate for two years.

Of Reagan's nominees to appeals courts, 87 percent were confirmed, though most preceded the polarizing Bork battle. Of Clinton's, 61 percent were confirmed.

During Clinton's first two years, when Democrats controlled the Senate, 90 percent of nominees to the federal bench were confirmed. In his last six years, with a Republican Senate, about 70 percent made it through. Nominees also had to wait nearly twice as long to get confirmed, and many were never acted on.

Analysts say parity in the Senate and the seeming increased hostility of fights over judicial nominees with each new administration underscore the challenges facing Bush.

"The days of the Senate rubber stamping a president's nominees for the courts, even for lower court judges, are over," said Abner Mikva, White House counsel to Clinton and a former judge on the U.S. Court of Appeals. "I'm sure there will be payback. I'm sure there will be senators who didn't get their nominees confirmed who will say, 'Now it's my turn.'"

Sun staff writer Karen Hosler contributed to this article.

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