Bush pleas for new judges, but so far it's hardball

President calls for end of contention over nominees, but the power of courts could make hearings hot.

The all-time record for a judicial nominee languishing without Senate action belongs to Helene White, a state appeals court judge in Michigan.

A January 1997 appointee of Bill Clinton, she waited more than four years, only to have her nomination wither away by intentional neglect in the Republican-controlled Senate.

Now as President Bush begins announcing his own nominees, legal analysts are watching closely to see if the same tactics that defeated Ms. White and other Clinton appointees will be used by Senate Democrats to block Bush judges.

Such politically motivated intentional neglect is by no means new. Two of Mr. Bush's 11 nominees Wednesday to the federal appeals court already have first-hand experience with such tactics.

Terrence Boyle, a federal judge in North Carolina, and Washington, D.C., lawyer John Roberts both saw nominations dashed, in 1991 and 1992, through inactivity by Senate Democrats in the waning weeks of the administration of President Bush's father.

The question now is whether the Senate and the White House are prepared to break a seemingly endless cycle of tit-for-tat obstruction of nominees to get the nation's courts back up to full efficiency.

If not, the country will likely face a new round of partisan bickering and deadlock over judicial nominees.

"When you have divided government, there are going to be some built-in restraints, especially when the Senate is so close," says Carl Tobias, a law professor at the University of Nevada at Las Vegas, who has studied the appointment process.

The Framers' balance

Indeed, the nation's founders declined to give either the president or the Senate exclusive power to appoint judges. Instead, they created a system of shared power. The president nominates federal judges "by and with the advice and consent of the Senate," says Article II of the Constitution.

What those all-important words "advice and consent" actually mean depends on whose party controls the White House and/or the Senate, legal analysts say. The same arguments that were being advanced by Democrats during the Clinton administration about the need to quickly fill judicial vacancies are now being advanced by Republicans on behalf of Bush.

And Senate Democrats are insisting that each nominee's home-state senators be given the same power to veto candidates that they had during the Clinton years.

The so-called "blue slip" process, in which a home-state senator may indefinitely delay a nominee by failing to return a blue slip to the judiciary committee, would offer the Democrats a straightforward way to block nominees they deem too far outside the judicial mainstream.

It was such a blue-slip hold by a Michigan Republican that prevented the judiciary committee from ever considering the merits of Ms. White's nomination.

Senate Judiciary Committee Chairman Orrin Hatch of Utah says the blue-slip process should involve consultation, not veto power. But Senate Democrats insist otherwise, and threaten to bring the entire process to a halt unless the power to veto is acknowledged by senate Republicans.

Legal analysts say concern about possible blue-slip holds by California's two Democratic senators prompted Mr. Bush to delay naming two nominees to the Ninth US Circuit Court of Appeals in San Francisco. And North Carolina's Democratic Sen. John Edwards has threatened to place a hold on Judge Boyle's nomination, unless the White House reconsiders an earlier Clinton nominee for a judgeship on the Fourth Circuit in Richmond.

Some legal analysts say the White House could outmaneuver such blue-slip threats by filling critical appeals court vacancies with candidates from states with two cooperative Republican Senators.

In essence, that is what the White House

did when it chose Jeffrey Sutton, an Ohio lawyer, and Deborah Cook, an Ohio Supreme Court justice, for seats on the Sixth Circuit in Cincinnati.

Michigan Sen. Carl Levin (D) says he is reluctant to support any nominees to that circuit unless White and another Clinton nominee from Michigan are reconsidered. But Mr. Levin has no blue-slip power over nominees from the circuit's other three states: Ohio, Kentucky, and Tennessee, each with two Republican senators.

Risks in blue-slip strategy

"That is really the trump card that Republicans hold," says Clint Bolick of the Institute for Justice. "A veto is a dangerous strategy. If Democrats turn obstructionist, they could lose ... home-state appointees."

A federal law requires that each state be represented in circuit court by at least one judge. The Sixth Circuit now has two appeals court judges from Michigan.

But Joseph Tomain, dean of the University of Cincinnati College of Law, says it is customary for nominees to come from their predecessors' home state.

With 31 openings among 179 appeals court judgeships, a Democratic blue-slip strategy could greatly complicate Bush's judicial efforts. Vetoes could literally shut down the nomination process for appeals court judges in the Second Circuit in New York, the Seventh in Chicago, and the Eighth in St. Louis. In those circuits, no state has two Republican senators.

(c) Copyright 2001. The Christian Science Monitor