Democrats Look to Battles After Ashcroft

The confirmation of John Ashcroft as attorney general is almost a done deal, but widespread opposition to the former Missouri senator and the grilling he has taken from Senate Democrats suggest that President Bush’s judicial nominees also could encounter heavy fire.

And the field of combat is far wider than potential Supreme Court openings.

Even before the Supreme Court in December cleared the way for Bush to become president on a 5-4 ruling, it was assumed that any vacancies on the high court during the next four years would spark intense ideological battles.

But 80 vacancies already exist throughout the federal judiciary--26 of them spread throughout the 13 powerful appeals courts.

Bush administration officials “better think long and hard about whom they send up, not just for the Supreme Court but for circuit court nominations,” said Nan Aron, president of the anti-Ashcroft coalition, Alliance for Justice.

Senate Minority Leader Tom Daschle (D-S.D.) suggested Wednesday that Democrats would weigh carefully Bush’s judicial nominees.

“I will not get into threats or some sort of reading between the lines here with regard to future nominees,” Daschle told reporters. “My belief is that we owe [the president] the right to put his administration in place.” But he added that Democrats are not obligated to approve every nominee and would be ready to exercise all their options “should the time come when we differ on other nominees, especially those involving the Supreme Court.”

Like Supreme Court justices, federal appellate and district judges are entitled to serve for life. Senate confirmation is the final checkpoint once a president makes a judicial nomination.

Republicans, including Ashcroft when he was a senator, subjected several of former President Clinton’s nominees to withering scrutiny and simply refused to allow votes on many others, including a number of appellate nominees.

The 1999 rejection of Missouri Supreme Court Judge Ronnie L. White’s nomination to the federal bench, an action spearheaded by Ashcroft, was the first time in many years that the full Senate had voted against a president’s choice for a federal district court judgeship.

Now, with the Senate split 50-50 between the two major parties, Democrats are prepared to play hardball.

Even Sen. Russell D. Feingold of Wisconsin, the only Democrat on the Judiciary Committee who voted Tuesday to recommend Ashcroft’s confirmation, warned that Bush could get tougher treatment on judicial appointments. “I’m not at all sure that this kind of deference should be given any more on lifetime federal judicial appointments,” Feingold said.

As if to underscore the linkage between the Ashcroft nomination and judicial vacancies, Feingold urged Bush to renominate Judge White and support another jurist, Roger Gregory, who was nominated by Clinton in January. Gregory is now a judge on the U.S. 4th Circuit Court of Appeals in Virginia through a temporary recess appointment.

Clinton named Gregory, the first African American to serve on the 4th Circuit, during the Senate’s December recess, infuriating many Republicans. They denounced the move as a run around the Senate and a needless challenge to the new president. But two Republican senators from Virginia, George Allen and John W. Warner, last week endorsed Gregory.

It would take only one stubborn Democrat to tie up the Senate on any given day and 41 to sustain a filibuster indefinitely. The liberal interest groups aligned against Ashcroft are counting on Senate Democrats to rely on the filibuster in the future--even though Democrats have declined to do so in the Ashcroft case.

Republicans are already portraying the anti-Ashcroft campaign as a front to galvanize opposition to Bush judicial nominees.

“This is not really about John Ashcroft,” Senate Majority Leader Trent Lott (R-Miss.) told “Fox News Sunday.” He added: “It’s also a shot across the bow, saying: ‘Don’t you dare appoint a conservative to the Supreme Court. This is just a tiny example of what we’ll do.’ ”

Thomas Jipping, an expert on judicial selection at the conservative Free Congress Foundation, said of the anti-Ashcroft forces: “To them, it was worth making John Ashcroft a political pinata in order to put President Bush on notice.”

Aron and leading Democrats dispute that interpretation. Sen. Edward M. Kennedy (D-Mass.), a leading critic of Ashcroft on the Senate Judiciary Committee, insisted to reporters Tuesday: “I’m just looking at this nomination right now.”

But for at least 15 years, since the second term of President Reagan, the politics of the Senate has been marked by intense, ongoing struggles over judicial confirmations.

When the 106th Congress adjourned in December, 41 of Clinton’s nominations expired without action. One Clinton nominee, Judge Richard A. Paez, endured a record 1,506-day wait before the Senate Republican leadership agreed to schedule a vote on his nomination to become an appellate judge. He was confirmed last March for the U.S. 9th Circuit Court of Appeals in San Francisco.

Before Clinton, former President Bush squared off frequently against a Democrat-controlled Senate. The 1991 battle over the nomination of Clarence Thomas to the Supreme Court was a milestone. Thomas barely squeezed through the Senate after Anita Faye Hill testified that he had made sexually charged remarks to her.

And in the Reagan administration, there was the 1987 Senate rejection of Judge Robert H. Bork, a Supreme Court nominee opposed for his conservative views by many of the same liberal groups that now oppose Ashcroft.

Even before Bork, there was Jeff Sessions, a conservative federal prosecutor from Alabama whom Reagan tapped in 1985 to become a trial judge. His nomination died in committee.

Sessions, now a Republican senator and member of the Judiciary Committee, draws parallels between the attacks on Ashcroft and what he, Bork and other conservative judicial nominees endured. Sessions said that the Democratic commitment to bipartisanship will be tested when Bush makes his first nominations to the bench.

“It’s up to the senators to give a candidate a fair shake,” Sessions said. “It ought not be decided by a coalition of groups with a left agenda.”