Clear Path for Some Nominees
The Senate’s compromise deal on judges should clear the way for several of President Bush’s most conservative nominees to win approval, while several others who had less support on the right will remain in limbo.
Alabama’s former attorney general, William H. Pryor Jr., and California Supreme Court Justice Janice Rogers Brown, both favorites of social conservatives, are likely to win lifetime seats on a U.S. appellate court.
The same is true with Texas Supreme Court Justice Priscilla R. Owen, one of Bush’s first judicial nominees. A favorite of pro-business conservatives, she is expected to finally win approval for the U.S. 5th Circuit Court of Appeals in New Orleans.
Pryor, who has called the Supreme Court’s Roe vs. Wade decision on abortion rights “an abomination,” was seen by conservatives as articulate and forceful, likely to be a force for years on the U.S. 11th Circuit Court of Appeals in Atlanta. Bush put him on that court with a recess appointment in February 2004, but Monday’s deal will allow him to win confirmation to a permanent position.
Brown is slated to serve on the influential U.S. Court of Appeals for the District of Columbia, which decides many important regulatory disputes involv ing issues such as communications, the environment and workplace safety. Her attacks on government regulation won her favorable attention in conservative circles, along with critical examination by Senate Democrats.
Until Monday, the Democrats had been determined to block her confirmation, arguing that she posed a danger to federal programs they cherish. An African American with conservative credentials, Brown has also been seen as a potential Supreme Court nominee; a position on the D.C. appellate court is a frequent steppingstone to the high court.
Owen had the strong support of Texas’ two Republican senators -- Kay Bailey Hutchison and John Cornyn, who served with her on the state Supreme Court -- and Bush’s top political advisor, Karl Rove, helped her win election to the state Supreme Court in 1994. If confirmed, she will join the U.S. 11th Circuit Court of Appeals in New Orleans, which already is dominated by conservative judges.
The candidates set for confirmation in the compromise puzzled some observers, because Brown and Pryor in particular have unusually strong judicial philosophies. Brown has questioned the constitutional foundations of the New Deal, while Pryor used his state law enforcement pulpit to aggressively and successfully restrict the ability of the federal government to regulate the activities of states in myriad areas.
“If the deal is the filibuster is only going to be used in ‘extraordinary circumstances,’ it seems that judicial philosophy is not an extraordinary circumstance to stop somebody,” said John Yoo, a former Justice Department official who is now a professor at Boalt Hall School of Law at UC Berkeley.
“I do not think there are any Bush administration circuit nominees who are any more revolutionary in their judicial thinking than Pryor and Rogers Brown,” he said.
Yoo said he thought the Democrats were being pragmatic. “Part of the answer has got to be that Democrats thought they were starting to feel hypocritical stopping two women, one of whom is African American,” he said.
Although Pryor, Owen and Brown all had the enthusiastic backing of key Republicans in the Senate, the same was not true for Idaho lawyer William G. Myers III and Michigan state court judge Henry W. Saad.
Myers, who was chosen for the U.S. 9th Circuit Court of Appeals in San Francisco, is one of the few controversial nominees in recent years to come under attack for his record on environmental rather than social issues. Although he could have brought ideological balance to a liberal-leaning court, his nomination did not garner unquestioning support among Senate Republicans.
A former mining industry lawyer and the top Interior Department lawyer from 2001 to 2003, Myers had been ardently opposed by nearly every prominent environmental group, including Earthjustice, the Sierra Club and the National Wildlife Federation.
Saad’s nomination for the U.S. 6th Circuit Court of Appeals in Cincinnati had been blocked by Sen. Carl Levin (D-Mich.), who complained that President Clinton’s nominees to the same court had been blocked by Republicans.
Last week, Senate Minority Leader Harry Reid (D-Nev.) raised eyebrows when he commented during a Senate debate that Republicans should examine Saad’s confidential FBI report before voting to confirm him.
Reid gave no hint what he was referring to, and was himself criticized by Republican members who said the reference to the background check was a breach of Senate etiquette.