Senators from Virginia, New Jersey and Michigan are threatening to withhold support for U.S. Court of Appeals nominees because they say Bush dismissed their recommendations. And senators from Rhode Island and Maryland are already criticizing Bush for what they call his lack of consultation on nominations that have yet to be announced.
“All of the senators are really puzzled by the way the White House is handling this,” said Sen. Barbara Mikulski (D-Md.), “but the White House is a puzzling institution.”
Unlike the years when Republicans controlled Congress, Bush must now contend with a Democratic-led Senate Judiciary Committee that will not even hold hearings on nominees unless they receive a favorable “blue slip,” a tradition revived this year by Chairman Patrick Leahy (D-Vt.) that essentially gives home-state senators veto power over a candidate.
The potential impasse threatens to leave a third of the 17 appeals court vacancies unfilled, handing Republicans a potent campaign issue. Few other issues have proven as effective in mobilizing conservative voters as stalled judicial nominations. But at the same time, Bush could be sacrificing a longer-term gain: filling the federal bench with Republicans before his term ends in January 2009.
“He may be keeping the base happy and getting them fired up for the election, but he is not getting the imprint he’d like,” said Carl Tobias, a law professor at the University of Richmond.
The White House, and some of its conservative supporters, see it differently.
“The president nominates people who are qualified to serve and should be on our courts,” said Emily Lawrimore, a Bush spokeswoman. He expects a “swift and fair hearing.”
Each of the federal judiciary’s circuit courts spans several states, and senators attempt to have a say in who fills the court seats based in their states.
The latest showdown is unfolding in Virginia.
Sens. Jim Webb (D-Va.) and John Warner (R-Va.) worked for months to agree on five names to submit to Bush for a Fourth Circuit vacancy. They talked with five Virginia bar associations and interviewed 12 attorneys, including a law school dean and two members of the Virginia Supreme Court.
But Bush ultimately chose somebody not on the list: E. Duncan Getchell, a Richmond appellate attorney.
“The White House talks about the spirit of bipartisanship, lamenting congressional obstructionism,” Webb said after Getchell’s nomination last month. “The White House cannot expect to complain about the confirmation of federal judges when they proceed to act in this manner.”
Warner added last week: “I put in five names. I’m standing by my five names. Remember what Tammy Wynette said? I stand by my man. I stand by my five nominees to the judicial circuit.”
Warner supported Getchell, a Federalist Society member, when the senator served with former Sen. George Allen (R-Va.), but no longer. “The change is due simply to the fact that as a consequence of the November election, Democrats are now in the majority,” he said.
Neither Webb nor Warner has indicated any desire to back Getchell, although neither has yet said whether he will withhold a blue slip.
Even if they do, Getchell will likely go nowhere.
A reason why can be traced to Leahy.
For years, he railed against the Republican majority when it disregarded the objections of home-state senators. Leahy accused them of applying a double-standard: requiring positive blue slips for President Bill Cinton’s nominees but ignoring the practice once Bush got into office.
“Today will be long remembered in the annals of the Senate and of our committee for the precedent set by this hearing, for the hubris behind it and for the brazenness of the double-standard it sets,” Leahy said in July 2003, when the Judiciary Committee held a hearing on an appeals court nominee from Michigan opposed by Sens. Carl Levin (D-Mich.) and Debbie Stabenow (D-Mich.).
When Leahy took over the committee in January, he announced that he would abide by two traditions: the blue-slip policy and the Thurmond rule, an informal understanding named for the late Sen. Strom Thurmond (R-S.C.), a former Judiciary chairman, that only consensus nominees, if that, would be considered in the latter part of a presidential election year.
“That is why I was disappointed that this White House chose not to work with Democratic and Republican home-state senators” in Virginia, Leahy said in a committee statement last week. “President Bush chose to ignore their recommendations in making his nomination, showing his intent to pick a political fight instead of a judge to fill an important vacancy.”
While touting his committee’s progress on confirming judges, Leahy took another shot: “If the president had worked with senators from Michigan, Rhode Island, Maryland, California, New Jersey and Virginia, we could be in a position to make even more progress.”
Conservative judicial activists have taken issue with the Democratic approach.
“Sen. Leahy often sounds like he believes the Senate’s role in picking judicial nominees is equal to that of the president,” said Curt Levey, executive director of the Committee for Justice. By saying the president intended to “pick a political fight” in Virginia, Leahy “implies that the president’s role is normally nothing more than choosing from a list given to him by senators.”
There should be no “expectation of deference” in states where neither senator is from the president’s party, Levey said. “In such states, the senators may choose to hold the judicial seats hostage until they get their way, as is happening in Michigan and may happen in New Jersey. But if senators do so, it is they who are picking a fight.”
Sen. Arlen Specter of Pennsylvania, the ranking Republican on the Judiciary Committee, said the president has been consulting with him on an opening on the Third Circuit.
“That is going to be ripe for public disclosure,” Specter said. “But I don’t want to do it now.”
Yet in Rhode Island, where both senators are Democrats, the story is different.
Sen. Sheldon Whitehouse (D-R.I.) said there has been little progress, at least from his perspective, in finding a nominee for the First Circuit appeals court.
“It is a lifetime appointment, and in 15 months, we will be able to have a nominee by whom we will have a serious voice, with a White House that is interested in listening to the Senate’s point of view,” Whitehouse said. “It is not my place to offer up names absent what I consider to be a serious discussion.”
Sen. Jeff Sessions (R-Ala.), a Judiciary Committee member, said good nominees should get their hearing. But he suggested that Bush’s decision to go around the Virginia senators might not bode well.
“So we are going to have a thrill a minute,” Sessions said. “It looks like we might have a fight over them if this is occurring.”