Partisan Bickering Clouds Cox Choice for Bench

The White House has delayed the possible nomination of Rep. Christopher Cox (R-Newport Beach) to a federal appeals court while Senate Democrats and Republicans spar over the rules for considering judicial nominees.

Cox’s name is not expected to be included on the first batch of judicial nominees President Bush plans to unveil today for congressional review.

Cox, first elected to the House in 1988 and a member of the House GOP leadership, was mentioned earlier this year as a leading contender to fill one of three vacancies on the U.S. 9th Circuit Court of Appeals based in San Francisco.

But in a Senate evenly split between the parties, judicial nominations are shaping up as a major battle. And Cox’s prospects have been clouded by lack of support from California’s two Democratic senators.

Sen. Barbara Boxer, a staunch liberal, opposes a judicial appointment for Cox, who has a strongly conservative voting record.

Perhaps more significant, Sen. Dianne Feinstein, a centrist, has not backed Cox for the bench. Feinstein’s position could be pivotal because she sits on the Senate Judiciary Committee--the first hurdle any nominee would have to clear before a full Senate vote on confirmation.

Feinstein said the White House told her Tuesday that Cox’s name would not be on the first nomination list. Feinstein added that she has not ruled out supporting Cox in the future.

Democrats insist that the assent of both senators from a nominee’s home state should be required before the chamber takes action. Republicans say they will not allow such incursions on the presidential power to pick federal judges.

The two parties battled over judicial nominations during much of President Clinton’s tenure, with Democrats accusing the GOP of unfairly thwarting his selections.

Cox declined to comment Tuesday on his apparent exclusion from Bush’s first list of nominees. But he said timing would be important if his name is put forward later. Under California law, Cox said, his 47th Congressional District seat could be held open for much of next year if it becomes vacant after the December filing deadline for 2002 primary elections. “Given [the GOP’s] five-seat margin in the House, that is something I have to take very seriously,” he said.

Associated Press said Los Angeles County Superior Court Judge Carolyn B. Kuhl, another previously mentioned contender for the 9th Circuit bench, also would not be on the first nomination list.

Bush plans to announce his first 11 judicial nominations--all for the appellate courts--at a White House ceremony today, a senior White House official said.

Given the disputes between the Clinton White House and Congress over judicial appointments, there have been suggestions that Bush initially will seek to avoid controversial appointments. Indeed, in a conciliatory move, the White House official said Bush would nominate two men previously nominated by Clinton--including Roger Gregory for the U.S. 4th Circuit Court of Appeals in Virginia. Clinton’s decision to give Gregory a temporary appointment to that bench before he left office had drawn fire from some Senate Republicans. Gregory is the first black judge to serve in that circuit.

The Washington Post reported that other nominees included Jeffrey Sutton, who formerly clerked for Supreme Court Justice Antonin Scalia; Michael McConnell, a leading legal scholar who has argued for an expanded role for religion in American life; Barrington D. Parker Jr., a federal judge in Manhattan; and Miguel Estrada, a Washington attorney who has argued 15 cases before the Supreme Court and is a partner of Theodore B. Olson, who led the court fight that helped Bush win the White House.

With judges given lifetime appointments, the effect the White House can have on the political complexion of the federal judiciary can last many years after a president has left office.

During the presidential campaign, Bush said he opposed what he termed activist judges, who he said render decisions that reach beyond the laws written by Congress.