Washington Post - President Bush Renominates Judicial Picks - Fight With Senate Democrats Over Blocked Candidates Appears Likely

November 16, 2006
By Peter Baker
Washington Post Staff Writer

President Bush renominated six previously blocked candidates for federal appeals court yesterday, triggering the first real battle with ascendant Democrats since the midterm elections and signaling what could be the start of a fierce two-year struggle over the shape of the federal judiciary.

The move heartened conservatives who worried that Bush would scale back his ambition to move courts to the right and outraged liberals, who called it a violation of the spirit of bipartisanship promised since Democrats captured Congress. Both sides saw it as a possible harbinger for the remainder of Bush's presidency, particularly if a Supreme Court vacancy opens.

The decision to send back the six nominees, along with four new candidates for the bench, was a provocative maneuver intended to signal that Bush does not plan to cower in the face of an opposition Congress, because the Senate almost certainly will not act on them in the lame-duck session that adjourns next month. If Bush wants to keep pushing for these nominations, he will have to resubmit them in January, when the Senate reconvenes with a 51-vote Democratic majority.

"We are hopeful that the days of judicial obstruction are behind us," said White House spokeswoman Emily Lawrimore. Noting that a Republican Senate confirmed 15 of Bill Clinton's nominees to the federal appeals bench in his last two years as president, she added: "We are hopeful that President Bush's nominees will receive a fair up-or-down vote."

Sen. Charles E. Schumer (D-N.Y.) said none of the six would be confirmed. "It's a real slap in the face," he said by telephone. "It basically makes you think the talk of bipartisanship is just talk. . . . I guess it's a sop to the right, but if he's going to keep doing sops to the right, it means they didn't pay attention to the results of the election."

Judgeships have been a priority for conservatives and a major flashpoint between Bush and congressional Democrats. A group of centrist senators from both parties last year brokered a truce in the nomination war and Bush secured confirmation for two Supreme Court nominees, John G. Roberts Jr. and Samuel A. Alito Jr. In his final days on the campaign trail, Bush warned supporters that a Democratic Senate would never have confirmed Roberts or Alito and would stonewall future nominations.

Now he appears ready to test that proposition. None of the six nominees resubmitted yesterday received a Senate floor vote: Michael B. Wallace for the U.S. Court of Appeals for the 5th Circuit; William J. Haynes II and Terrence W. Boyle Jr. for the 4th Circuit; William G. Myers III and Norman Randy Smith for the 9th Circuit; and Peter D. Keisler for the D.C. Circuit.

In addition, he sent four new nominations: James E. Rogan to the U.S. District Court in California; Benjamin H. Settle to the district court in Washington state; and Margaret A. Ryan and Scott W. Stucky to the U.S. Court of Appeals for the Armed Forces. Rogan, a Republican former congressman, is the most prominent of the four, having served as one of the House managers who prosecuted Clinton during his 1999 impeachment trial.

Four of the previously blocked nominees were criticized as unqualified or too conservative. One of the others ran into objections from California senators who did not want his seat moved to Idaho and the last was stalled by assertions that the caseload on his circuit did not justify another judge. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said Tuesday that he would not move the nominations during the lame-duck session.

Elliot Mincberg, legal director of the liberal People for the American Way, said: "This is a disturbing sign . . . in terms of Bush trying to reach out for genuine consultation and consensus. But even more important will be what he does in January. If he takes the same tack in January, then he signals that he wants confrontation."

Conservatives hope that is what Bush wants and say it will test Democrats' commitment to bipartisanship. "The president's sending the message that he's not going to deviate one iota from his judicial philosophy, which is that he's going to send up nominees who don't legislate from the bench," said Jay Sekulow, chief counsel of Pat Robertson's American Center for Law and Justice, who advises the White House.