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Two Judges Face the Heat

Senate Republicans are expected to try to force votes on two of President Bush’s top judicial picks this week, testing Democratic will to maintain simultaneous filibusters and likely imperiling working relations between the two parties for the foreseeable future.

Senate Majority Leader Bill Frist (R-Tenn.) is expected to seek confirmation votes on Miguel Estrada and Priscilla Owen as early as Wednesday, a one-two political punch designed to highlight Democratic opposition to the GOP’s minority and women judicial candidates.

“The only way we can get traction on this issue is a sustained effort to focus our members, the press and our constituencies on it,” said a GOP leadership aide. “If that takes moving forward on a number of judges concurrently to sustain attention that is what we will do.”

But Democrats vow to dig in and continue to block confirmation votes on each nominee, citing the White House’s refusal to release memos from Estrada’s days as a Justice Department lawyer and their outright opposition to Owen’s nomination.

Even as they stall Estrada’s nomination, Democrats said they will call on Frist to immediately call up the nomination of Edward Prado, a Hispanic that Bush nominated to the 5th U.S. Circuit Court of Appeals on Feb. 6. Prado was reported out of committee on April 3 without any dissent from Democrats.

Ranit Schmelzer, a spokeswoman for Senate Minority Leader Tom Daschle (D-S.D.), said Friday that Daschle informed Frist prior to adjourning for recess that “he could go along and bring [Prado] up because he would pass.” Frist did not bring Prado’s nomination up for a floor vote, and he remains on the Senate calendar ready for a vote.

Democrats complain that Frist is refusing to bring Prado up for a vote because it would discredit some Republicans’ claims that Democrats are anti-Hispanic and anti-Latino for filibustering Estrada.

“He is a non-controversial judge, and the notion that anybody on our side is against anybody because they are Latino is so ridiculous,” said Sen. Russ Feingold (D-Wis.), a member of the Judiciary Committee.

“[Prado] should be brought up,” added Sen. Charles Schumer (D-N.Y.), another member of the Judiciary panel.

But Frist said in an April 11 interview that he was not going to allow Democrats to set the legislative agenda and determine the judicial voting schedule.

“I’m not going to let them cherry pick, then filibuster groups of people and not give me some time agreements [on final votes],” Frist said.

The Majority Leader also dismissed chatter that he was holding back Prado’s nomination to score political points against the Democrats.

“As people come to the executive calendar, those that are nominated by the president, I am going to try to take them just one by one and I tried to do that [before recess],” Frist said. “They won’t give me unanimous consent time agreements on any of them.

“This element of obstruction, that is not even frustrating to me — it is just a matter of fact,” Frist added.

So far, Democrats have successfully defeated several cloture votes on Estrada, who was renominated by Bush to the U.S. Court of Appeals for the D.C. Circuit on Jan. 7 after his nomination languished in the Democratically controlled Judiciary Committee in the 107th Congress. But it would be the first time the Senate, as a whole body, would have an opportunity to vote on Owen, whom the president has nominated to the 5th U.S. Circuit Court of Appeals.

Bush originally picked Owen for the lifetime judicial appointment in the 107th Congress, but her nomination was defeated on party lines in committee last fall. She was renominated Jan. 7 and approved under Republican rule along a party-line vote on March 27.

Democratic-aligned interest groups have planned a Thursday rally to denounce Owen’s nomination.

On Monday and Tuesday, opponents will hold news conferences to condemn another one of Bush’s judicial nominees, Jeffrey Sutton, seeking a seat on the 6th U.S. Circuit Court of Appeals. He, too, was originally nominated in 2001 by Bush for the Circuit Court. Sutton, as a private lawyer, has argued cases against the Americans with Disabilities Act, invoking strong feelings from several Senators and disabled Americans.

Despite strong opposition to Sutton from some within the Democratic Caucus, the Senate’s leading liberal acknowledged that Sutton would likely be confirmed when the Senate votes on his nomination Tuesday.

“I would expect that he would pass,” Sen. Edward Kennedy (D-Mass.), a senior member of the Judiciary Committee, said during a domestic policy briefing with reporters last week.

Kennedy, however, said there was near unanimity among Democrats to oppose Owen, adding that he couldn’t recall a single Democratic Senator speaking out in favor of her nomination during Caucus meetings before the recess.

As for Estrada, Schmelzer said that “Democrats have made their position on Judge Estrada very clear. They asked for additional documentation, and the White House refuses to turn over that documentation.”

For Democrats to sustain filibusters on both Estrada and Owen, they must ensure that only 59 Senators support each nominee.

A Republican Judiciary aide said there is a question of whether it is “unconstitutional” to force a judicial nominee to achieve a “supermajority” of 60 votes, as Democrats are requiring in these two cases, to win approval.

Still, the GOP aide predicted it is a political miscalculation on Democrats’ part to sustain a double filibuster.

“If one party is saying that you must think a certain way for us to value you as a member of our party, that is a political risk the Democrats are willing to make and we are happy to invite that,” said the aide.

Pointing to the recent controversies involving Senate Republican Conference Chairman Rick Santorum’s (Pa.) views on homosexual acts and former Senate Minority Leader Trent Lott’s (R-Miss.) observations on then-Sen. Strom Thurmond’s (R-S.C.) 1948 segregationist presidential platform, a senior Democratic aide said party leaders are not worried about the decision to filibuster Estrada and Owen.

“That party does not have a great deal of credibility with minorities,” the aide said.

But the aide acknowledged a judicial fight on these two nominees this week could result in long-term negative consequences.

“What happens [this] week undoubtedly will raise us to another level,” said the aide, referring to existing bitter relations between both parties.

A GOP aide agreed that failure to reach agreement on these two nominees soon is likely to result in a “serious meltdown” in the Senate chamber.

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