Bush Picks 11 for Federal Bench

President Bush moved to tip the lower courts back toward the right Wednesday, naming several of the conservative legal movement’s brightest young stars to seats on the U.S. courts of appeal.

In all, the president announced 11 nominees to the regional U.S. courts of appeal, including two Democrats. As a group, the first round of judicial candidates from the Bush White House appears to reflect both a commitment to conservative philosophy and a concession to political reality.

They include a former clerk to Supreme Court Justice Antonin Scalia who has won three “states’ rights” victories in the high court, a Utah law professor who advocates a greater role for religion in public life and a politically conservative Latino who has clerked at the high court.

Conspicuously absent from the first batch of nominees were two Californians: Rep. Christopher Cox (R-Newport Beach) and Los Angeles Superior Court Judge Carolyn Kuhl, who had been slated as nominees to the U.S. 9th Circuit Court of Appeals. Also missing was conservative Washington lawyer Peter Keisler, who was the initial pick as a Maryland judge on the U.S. 4th Circuit Court of Appeals.

The three were sidetracked, at least temporarily, by opposition from Senate Democrats who represent their states.

Bush gathered the slightly pared-down group in the East Room of the White House and praised them as prospective judges of “the highest caliber.”

“They come from diverse backgrounds [and] all have sterling credentials,” he said. “I submit their names to the Senate with full confidence that they will satisfy any test of judicial merit.”

Democrats on the Senate Judiciary Committee, sounding mollified, said they were backing away from a plan to block all the pending Bush nominees.

“We’re going to examine them carefully,” said Sen. Charles E. Schumer (D-N.Y.), “but the idea of holding back everybody isn’t necessary any longer.”

Sen. Patrick J. Leahy of Vermont, the committee’s ranking Democrat, said his party will insist on “a balanced judiciary. We’re not trying to appoint judges, but we also feel that ‘advise and consent’ does not mean appoint and rubber-stamp.”

Overall, the lower federal courts are closely split on ideological grounds. Slightly more than half of the 756 active judges are Democratic appointees, most of whom were appointed by President Clinton. The others are Republicans who were named during the 12 years that Ronald Reagan and the elder George Bush were in the White House.

Political Showdown Seems a Certainty

The close split on the courts, combined with the 50-50 divide in the Senate, has set the stage for a political showdown on judicial nominations.

The Bush team unwittingly turned up the heat by moving secretively on judges. The White House counsel’s office took charge of screening nominees for the bench without consulting home-state senators. For example, Sens. Dianne Feinstein and Barbara Boxer were alerted to the pending nominations of Cox and Kuhl when a Los Angeles Times reporter called their offices to confirm the news.

Soon after taking office, the new administration also announced it was revoking the American Bar Assn.’s long-standing program of screening potential judges.

To liberal activists, these moves only heightened their suspicion that Bush’s advisors were interested first in naming right-wing ideologues to the courts. They went on the attack Wednesday.

Ralph G. Neas, president of the liberal People for the American Way, accused the president of launching a “push toward a far-right judiciary.”

“This slate of candidates appears to have been packaged to push the envelope far to the right,” Neas said. A more conservative judiciary threatens to roll back civil rights, the separation of church and state, and the right to abortion, he said.

But Clint Bolick, a former Reagan administration lawyer, accused “left-wing activists” of falsely portraying the nominees as extremists.

“These nominees reflect the president’s fairly conservative philosophy, but they also reflect the mainstream of legal thinking today,” said Bolick, the legal director of the conservative Institute for Justice.

Some of the nominees could be characterized either way, as conservative activists or mainstream thinkers.

Jeffrey S. Sutton, the 40-year-old former clerk to Justice Scalia, is a leading advocate of the states’ rights’ revival.

Two years ago, he represented Florida in arguing that a state employee who is a victim of age bias cannot sue the state, despite the federal law that makes such discrimination illegal. He won on a 5-4 vote in the Supreme Court. This year, he represented Alabama and won an identical 5-4 victory that shielded the states from claims from employees with disabilities.

In both instances, the Supreme Court majority rewrote the federal law to shield the states.

Last month, Sutton was on the winning side again in a 5-4 ruling that shielded states from civil rights lawsuits over policies that have an discriminatory effect on minorities.

He is not always on the states’ side, however. In April, he represented the tobacco industry in challenging a Massachusetts law that bans cigarette advertisements near schools and playgrounds. He argued the ad ban violates the free-speech clause of the 1st Amendment. Bush nominated him to the U.S. court of appeals based in Cincinnati.

University of Utah law professor Michael McConnell, 45, has also won important conservative victories in religion cases in the Supreme Court. Last year, he won a 6-3 ruling that clears the way for public funds to flow to religious schools for computers and other equipment. Both he and Sutton support the constitutionality of public vouchers for parochial school students.

Two other former high court clerks are headed to the U.S. Court of Appeals for the District of Columbia. Attorney John G. Roberts, 46, clerked for Chief Justice William H. Rehnquist and was second in command to then-Solicitor Gen. Kenneth W. Starr during the first Bush administration. Miguel Estrada, 39, a former clerk to Justice Anthony M. Kennedy, served as a Justice Department official under former President Bush. He is seen as especially conservative, but he was highly regarded by the Clinton administration, which kept him on the job after 1993. Estrada is a native of Honduras.

A North Carolina nominee may face opposition from Democrats.

U.S. District Judge Terrence Boyle, 56, a protege of Sen. Jesse Helms, was nominated for the U.S. 4th Circuit Court of Appeals, even though Democratic Sen. John Edwards remains miffed over the treatment of several African American nominees.

Though North Carolina is the largest state in the five-state region of the 4th Circuit, it has no judges on the court because Helms blocked all the Clinton nominees. Now Edwards is threatening to do the same if Bush refuses to renominate James Wynn of Raleigh, a state appeals court judge.

Bush Nominates a Clinton Choice

Bush renominated Judge Roger Gregory, an African American, to a permanent seat on the 4th Circuit. Before leaving office, Clinton put the Richmond lawyer on the appeals court, making him the first minority appointee for the seat. But his recess appointment would expire after a year. Nonetheless, Gregory won the endorsement of the state’s two Republican senators, John W. Warner and George Allen.

In New York, the Bush team avoided a confrontation with the two Democratic senators there by nominating federal Judge Barrington Parker Jr., a Democrat and African American, to the U.S. 2nd Circuit Court of Appeals.

Despite the bright spotlight on Wednesday’s announcements, the role of the appeals courts is often overstated.

These judges review the work of trial courts and establish the law in their regions. However, whenever they differ with judges elsewhere on a significant matter, lawyers will appeal to the Supreme Court, which is likely to move to resolve the conflict. As a result, appellate judges rarely make new law.

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Profiles of the Nominees

Terrence Boyle, 55, for the U.S. 4th Court of Appeals in Richmond, Va.: a District judge in North Carolina and a former aide to Sen. Jesse Helms (R-N.C.). His nomination was blocked by Democrats during the first Bush administration.

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Edith Brown Clement, 53, for the U.S. 5th Circuit in New Orleans: a District judge in New Orleans.

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Deborah L. Cook, 48, for the U.S. 6th Circuit in Cincinnati: an Ohio Supreme Court justice who was re-elected in November to a second six-year term on the state’s highest court.

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Miguel Estrada, 39, for the District of Columbia Circuit: a former assistant to the solicitor general and a law partner of Theodore B. Olson, the current president’s nominee for solicitor general.

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Roger Gregory, 47, for the U.S. 4th Circuit: a Clinton nominee who was blocked by Senate Republicans last year. Former President Clinton gave him a one-year appointment to the appeals court, which expires at the end of the year. First black judge on the court that covers more minorities than any other in the nation.

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Michael McConnell, 45, for the U.S. 10th Circuit in Denver: a University of Utah law professor who has expertise in church-state issues.

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Priscilla Owen, 46, for the U.S. 5th Circuit: a Texas Supreme Court justice who was the second woman elected to the state’s high court; was reelected to a second six-year term last year.

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Barrington Parker, 56, for the U.S. 2nd Circuit in New York: a District judge in New York appointed to the bench by Clinton. Parker, who is black, handled John Gotti Jr.’s plea deal and the Texaco race discrimination case.

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John Roberts, 46, for the District of Columbia Circuit: former clerk to Chief Justice William H. Rehnquist, his earlier nomination was never acted on during the first Bush administration.

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Dennis Shedd, 48, for the U.S. 4th Circuit: a District judge in Columbia, S.C., and former aide to Sen. Strom Thurmond (R-S.C.).

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Jeffrey Sutton, 40, for the U.S. 6th Circuit: a former Ohio solicitor general who pressed several states’ rights cases against the federal government; was originally appointed by Bush’s father but never received a confirmation vote by the Senate.

Source: Associated Press