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Copyright 2002 National Review  
National Review

April 30, 2002

SECTION: National Review Online; Byron York

LENGTH: 866 words

HEADLINE: GOP Malaise

BYLINE: By Byron York

BODY:
Next week will mark a key time in the Senate's ongoing war over judicial confirmations. Thursday, May 9 is the one-year anniversary of President Bush's announcement of his first nominees for the federal bench; on that day, the president nominated eleven judges for places on the circuit courts of appeal. Since then, just three have been confirmed - and two of those were Democrats whom Bush nominated in a conciliatory gesture. Of the eight who have not yet been confirmed, none has had a hearing before the Democratic-controlled Senate Judiciary Committee.





















Although their plans for May 9 are not yet set, Republicans on Capitol Hill will likely hold a series of media events to protest committee chairman Patrick Leahy's inaction on dozens of Bush nominees. But behind the angry words, there is a sense of malaise among some in the GOP who had hoped that Leahy's decision to kill the appeals-court nomination of Charles Pickering would spark a public reaction against committee Democrats. "The only thing that will make them act is if they feel that it is hurting them politically," says one key Republican aide. "The Washington Post editorials [criticizing Leahy's slow-motion confirmation strategy] have been helpful, but it's not something that has reached the public. We're pretty much at their mercy."

That's not likely to change anytime soon - at least as long as Democrats control the Senate and Leahy maintains his current low profile. Since the Pickering fight, the chairman and his fellow Democrats have shown no inclination to kill any more nominations, but at the same time they have shown no interest in considering some of the nominees the White House would most like to see confirmed - conservatives Miguel Estrada, John Roberts, Michael McConnell, and several others. For wary Republicans, the quiet in the Democratic ranks is deafening. "You never know what they're planning," says one GOP staffer. "When it's quiet you wonder what's going on."

Even though they are in an essentially reactive position, Republicans have scored one small victory. Last week, all 49 GOP senators signed a letter to Leahy asking him to explain his policy regarding so-called "blue slips," the documents by which senators can express disapproval of judicial nominees who come from their home states. "A clear statement of your blue slip policy is essential because it appears that some senators may be exercising an unprecedented and troubling power to veto via the 'blue slip' not only nominees from their home state, but nominees from neighboring states as well," the Republican senators wrote.

The letter referred to a situation in which Michigan Democrat Carl Levin, who has been engaged in a long-running dispute with Republicans over nominations to the Sixth Circuit Court of Appeals, is said to have opposed Bush nominees to the Sixth Circuit even when they came far from his home state (the circuit covers a wide geographic area, from Michigan to Tennessee). When President Clinton nominated Levin's sister-in-law to a place on the court a few years ago, the choice was opposed by the other senator from Michigan, Spencer Abraham. Now, Levin has been against all Bush nominees to the Sixth Circuit, whether they come from Michigan or not.

"We know of no instance in which a senator has been vested with veto power before the Judiciary Committee over nominees from states in the same circuit as his or home state," the GOP senators wrote. The letter had been circulating for weeks - it took a while to get everyone's signature - and was delivered on April 24. As it was making the rounds, Leahy added a Sixth Circuit nominee, Julia Gibbons, to the committee's hearing schedule, and she was approved on April 25.

Republicans see two ways of looking at Leahy's action. On one hand, it undercut the GOP argument and blunted the impact of the letter. On the other hand, the letter got a hearing for a Sixth Circuit nominee. In the latter view, that's a powerful argument to keep up pressure on the chairman. "If we're smart, this will encourage us to hit harder and faster," says one GOP aide.

But that was just one case. Now, many Republicans fear there will be few high-level confirmations for the rest of the year. And as odd as it may seem at this fairly early date, lawmakers worry that time for action this year is running out. The Senate will work the months of May, June, and most of July. It will be in recess in August, at work during some of September, and fully engaged with the election after that. In all, there are about 12 weeks of work left in the year. At Leahy's current pace, it is very easy to imagine many of the president's appeals-court nominations being delayed well into 2003.

So look for protests and sharp words on May 9. But look for something from Leahy, too. Some in the GOP suspect that Leahy will observe the day by passing through committee a number of lower-level and non-controversial nominees. He might then say that he did not have time to pay much attention to Republican protests because he was too busy confirming Bush nominees. And in the meantime, the judges of May 9 will remain in limbo.

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