Even Before Bush Can Name Them, Democrats, GOP Clash Over Judges


Partisan skirmishing over prospective judges, a regular feature of the Clinton years, has broken out early in President Bush’s term, even before he makes his first nominations to the courts.

In the Senate, the focus of the current fighting between Democrats and Republicans is, of all things, the blue slips of paper on which senators assess nominees.

If “blue slip” rules cannot be worked to their satisfaction at a meeting of the Senate Judiciary Committee on Thursday, Democratic senators say they will block two of Bush’s top Justice Department nominees--Theodore B. Olson as solicitor general and Larry Thompson as deputy attorney general.


And the conflict could escalate when Bush announces his first round of nominees, which is likely to be next week. “It will be soon. That’s all I can say,” White House spokesman Scott McClellan said Tuesday.

Democrats acknowledge that they are still angry over Republicans’ blocking of President Clinton’s court nominees. Sometimes the nominees were denied even a hearing.

With the Senate now evenly split between the parties, the Democrats say they want an equal voice in approving judges.

In sharp rejoinder, Sen. Orrin G. Hatch, the Utah Republican who chairs the Judiciary Committee, said Democrats need to accept that the election is over and President Bush won.

If nothing else, the pregame clash shows that both parties are intensely concerned about the ideological makeup of the federal courts.

“The politics of judicial confirmation seems to have ratcheted up yet again,” said Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst who has tracked judgeship fights for two decades. “The Republicans systematically blocked Clinton nominees, and now the Democrats look ready to do the same.”

By long tradition, U.S. senators have had strong influence over the federal judges who are selected to serve in their home states. The Judiciary Committee chairman solicits their views on a blue slip of paper.

After Republicans took control of the Senate in 1995, the “blue slip” process became the means for GOP senators to block Clinton’s court nominees. “No further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators,” Hatch wrote on the form.

Sen. Jesse Helms (R-N.C.) vetoed three African American nominees to the all-white U.S. 4th Circuit Court of Appeals by not returning a blue slip. The state’s Democratic senator, John Edwards, strongly supported the nominees.

With a Republican now in the White House, Hatch announced what appeared to be a change.

The views of home state senators as set forth on their blue slips “will be taken into consideration,” he said at a recent hearing, but they will not be decisive.

Democrats were furious. They interpreted Hatch’s new policy as a move to strip them of influence over Bush’s nominees.

California has two Democratic senators, Dianne Feinstein and Barbara Boxer, but the Bush White House decided to nominate Rep. Christopher Cox (R-Newport Beach) and state Judge Carolyn Kuhl to the U.S. 9th Circuit Court of Appeals without consulting them.

Maryland has two Democratic senators, yet Bush apparently is ready to name attorney Peter Keisler, a former clerk to Judge Robert H. Bork, to fill a Maryland seat on the 4th Circuit.

In North Carolina, Bush is expected to nominate Judge Terry Boyle, a protege of Helms, to the 4th Circuit. It is unclear whether Sen. Edwards will have any influence over that move.

Last week, the nine committee Democrats sent a letter to White House Counsel Alberto Gonzales saying that they wanted to be consulted in advance on prospective judges.

“In a 50-50 Senate, and after the closest national election in our history, this should be a time for finding more ways to work together on judicial nominees,” said Sen. Patrick J. Leahy (D-Vt.), the committee’s ranking Democrat. Both sides should seek “high-quality consensus candidates in whom all Americans can have confidence.”

In Thursday’s meeting, Democrats are expected to press Hatch to give them the same influence home-state Republicans had in the Clinton era.

“The Democrats are saying that the policy has been good enough for you for the last six years, it is good enough for us now,” said David Carle, a spokesman for Leahy.

However, a spokeswoman for Hatch denies the Democrats’ charge that the blue-slip policy is being changed.

“The policy has been to take into the account the home state senators’ views and they will be considered,” said Margarita Tapia, press secretary for Hatch. “As far as we are concerned, we are not changing anything, so there’s nothing to discuss.”

Bush’s nominees to the U.S. courts of appeals, where there are 31 vacancies, are expected to trigger political opposition. Those judges oversee trial courts and set the law in their regions.

While Supreme Court vacancies can spark huge political battles, Chief Justice William H. Rehnquist, 76, and Justice Sandra Day O'Connor, 71, are saying they have no plans to retire this year. Those two, along with 81-year-old Justice John Paul Stevens, are seen as most likely to retire in the next few years.

The trial courts are expected to be less controversial.

In California, Feinstein has worked out an agreement with Bush’s advisors to set up a six-member commission to recommend new judges for the districts based in Los Angeles, San Diego, San Francisco and Sacramento. Three commission members will be Republicans and three will be chosen by the two Democratic senators.