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Senate Democrats Still Undecided on Strategy Over Judicial Nominations

With the docket beginning to swell with circuit court nominees, Senate Democrats remain undecided about whether they will mount more filibusters of candidates they view as too conservative for lifetime appointments to the federal bench.

Having won the battle, for now, over circuit court nominee Miguel Estrada, Democrats will soon face a series of decisions about how they will handle the nominations of at least a handful of potential judges who face serious opposition from some quarters of their Caucus.

Minority Leader Thomas Daschle (D-S.D.) said Tuesday no decision had been made on how to handle any of the upcoming judicial battles, not even on Texas Supreme Court Justice Priscilla Owen, who was rejected by the then-Democratically controlled Judiciary Committee last year but was passed out by this year’s GOP-led panel.

“We haven’t come to a conclusion,” he said, adding specifically of a possible filibuster of Owen: “We haven’t even started talking about it.”

The Democratic indecision comes as the Judiciary Committee itself continues to be ripped apart by partisan, and sometimes personal, fights between Democrats and Republicans. Tuesday’s hearing for California Judge Carolyn B. Kuhl, nominated to the U.S. Court of Appeals for the 9th Circuit, was no exception.

Majority Leader Bill Frist (R-Tenn.), a friend of Kuhl’s since they took a chemistry class together during their freshman year at Princeton University in 1970, testified on her behalf. In his brief remarks, Frist referenced a quote from John Adams, whom he called the “father of the independent judiciary.”

After finishing his remarks, Frist was getting up to leave but Sen. Patrick Leahy (D-Vt.), ranking member of Judiciary, stopped Frist and “thanked” him for mentioning Adams. He then told Frist that Adams was in fact the first president who tried to “pack” the federal courts, something Leahy and other Democrats have accused President Bush of during the past two years.

A bitter Frist merely glared at Leahy, said nothing and walked out of the hearing room. “That’s quite a dynamic there,” Frist said afterward, referring to the constant sparring between Leahy and Judiciary Chairman Orrin Hatch (R-Utah).

Frist said he is trying to work out unanimous-consent agreements with Daschle to set up a timetable for bringing up some of the nominees who have cleared Judiciary and are awaiting floor action, including Owen, Jeffrey Sutton, Deborah Cook and John Roberts. Sutton, Cook and Roberts are all circuit court nominees whose nominations did not get hearings in 2002.

If he can’t get a UC agreement, Frist pledged to start bringing the nominations to the floor for drawn-out fights. “I don’t have the order down yet,” he said.

Democrats appear to be divided over how to treat the next batch of controversial nominees, with some itching for more fights and more filibusters. Sen. Barbara Boxer (D-Calif.), for example, is outraged that Hatch brought Kuhl up for a hearing, despite the fact that she never turned in a positive “blue slip” on Kuhl’s nomination.

Blue slips are given to home-state Senators for judicial nominees, and the home-state Senator is expected to give the Judiciary chairman their thoughts on the particular nominee. In the past, nominees have needed to get positive blue slips from both home-state Senators before Judiciary would even hold a hearing.

Hatch, however, has essentially abandoned that practice, something Leahy said was purely the result of a Republican White House and a Republican Senate wanting to rush through as many judges as possible. Kuhl’s hearing, Leahy said, “is the latest in a string of transparently partisan actions taken by the Senate’s new majority.”

Holding up a copy of the old blue slip — which is indeed blue — Leahy read aloud the wording Hatch used in the 1990s when he was chairman and a Democrat was in the White House: “No further proceedings on this nominee will be scheduled until both blue slips have been returned.”

“Ah, but then the presidency changed,” Leahy said, “and then the rules changed.”

Boxer, who objects to Kuhl’s work in the Reagan administration’s Justice Department on behalf of Bob Jones University, held out the possibility that she would lead a filibuster of Kuhl. “She’s way out of the mainstream,” she said. “I’m going to talk a long time about her on the floor. I’m going to talk as long as it takes.”

Minority Whip Harry Reid (D-Nev.) also endorsed the idea of more filibusters and tactical, procedural fights, without specifying which nominees would receive the most difficult treatment. “We’re going to continue to pick our fights tactically,” he said.

Asked if more nominees would be held to a 60-vote standard, he said, “If it were up to me, that would be the case. But it’s not my decision.”

Daschle would say only that the views of Judiciary members would play a critical role in which way the Caucus will go, a signal that could mean more bitter floor fights because the panel’s Democrats hail from the left wing of the party and pushed hardest for the Estrada filibuster.

“We take our cues primarily from the Senate Judiciary members,” Daschle said.

However, another Senate Democrat privately suggested that filibusters would be a very sparingly used tool, that there was “no global strategy” on delaying all nominees and that most would be viewed “one by one.”

This Senator, who is also close to leadership, suggested that the Estrada fight was different because of the alleged stonewalling by the nominee on answering questions and the White House’s refusal to turn over Estrada’s memorandums from his five-year stint as a Justice Department lawyer.

Other nominees would require similarly outrageous circumstances before a filibuster would be deployed, not just a bad resume, the Senator said. “You can’t stop bad candidates.”

Sen. Ben Nelson (D-Neb.), a centrist who has backed Estrada and other conservative Bush nominees, also expects future controversial nominees to be handled on a “case-by-case basis.” Nelson, a new member of Democratic leadership, said he does not expect there to be a coordinated effort in the Democratic Caucus to close ranks and defeat circuit court nominees through filibusters the way there was with the Estrada fight.

“I don’t think you’re going to see a concerted effort on any of these like you did on Estrada,” he said.

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