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Still No Truce on Judges

While Senate Democrats and Republicans have seemingly put aside their swords over Michael Mukasey, few Senators expect the rare detente on the Bush administration’s attorney general nominee will translate into a lasting peace in the ongoing battle over executive branch nominations.

Few topics have invited the same degree of partisanship in the Senate as President Bush’s selections for top Cabinet posts and lifetime appointments to the federal bench. Mukasey, however, has enjoyed uncommon support in both liberal and conservative circles, and ultimately is expected to win overwhelming vote of confirmation.

“This may be a temporary thaw or a period of goodwill,” Sen. John Thune (R-S.D.) said.

But Thune, like many other Senators, said he anticipates nomination battles likely will reignite in the coming weeks, depending largely on the speed with which Democrats move Mukasey’s nomination and bring up votes on Bush’s outstanding selections for the federal appellate court.

“Is it all peace, love and harmony?” Sen. John Cornyn (R-Texas) asked. “I think it’s a no.”

Indeed, Republicans have been agitating for months over the pace of votes for a series of Bush’s circuit court picks, saying the total of three installed so far this year falls far below the historical average of about one per month. GOP Senators are eyeing what they see as the next big test, which is whether and when Democrats bring forward a vote to install Leslie Southwick to the 5th U.S. Circuit Court of Appeals.

Southwick is a highly controversial nominee who just narrowly cleared the Judiciary Committee in July. Senate Majority Leader Harry Reid (D-Nev.) has indicated he would hold a vote before Senators leave for the October break, but the nomination faces a tough road to obtaining a filibuster-proof margin given that a majority of Democrats are likely to oppose it.

Also on the GOP’s immediate radar is a vote on the nomination of Jennifer Elrod to the 5th Circuit, but unlike Southwick, she isn’t viewed as a contentious pick. Still, Republicans are salivating over a fight with Democrats on judicial nominations, which they view as an ideal vehicle to charge the majority party with “obstructionism” and rally their conservative base heading into the 2008 election year.

In fact, some Senators and aides this week said they wonder if even Mukasey’s nomination — which so far has met few objections — will sail smoothly through the chamber. Questions still remain over Democratic calls on the White House to release documents related to the Justice Department’s handling of the firings of U.S. attorneys and other matters, and the Democrats’ timing for Mukasey’s confirmation hearings and a Senate vote remain unclear.

“The well could be poisoned pretty quickly,” said a Republican Senate leadership aide.

Democrats have said they plan to move Mukasey’s nomination swiftly, and they currently are negotiating with the White House on the document release in advance of hearings. Judiciary Chairman Patrick Leahy (D-Vt.), whose committee oversees the nomination, said Wednesday that if Mukasey’s paperwork arrives at the end of the week, he would then send out a committee questionnaire for the attorney general hopeful and “then we’ll plan a hearing.”

“No one is trying to delay anything,” Leahy said.

Democrats have long argued that Bush’s other nominees would move forward, if like Mukasey, they are reasonable, consensus individuals who merit the job. The White House has had some difficulties on its end in the past — especially in picking judicial nominees — for failing to advance names for executive branch openings to the Senate.

Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee, said in selecting Mukasey, the Bush administration broke previous practice to put forth a “qualified and reasonable nominee.” Although Whitehouse said he would like to think Mukasey is a sign of change, he still has his questions since Bush rarely has shown a penchant for advancing consensus nominees in his first six years in office.

“I hope it’s a harbinger of an administration, that as it comes to its last 15 months and hopes to salvage any shred of a productive legacy for itself, that it’s starting to value competency, reasonability and integrity,” Whitehouse said.

Sen. Benjamin Cardin (D-Md.) agreed, saying in his view Mukasey was “almost necessary” given the state of the Justice Department and concerns within Bush’s own Republican Party over the legacy left by former Attorney General Alberto Gonzales. Asked whether he expects the civility surrounding Mukasey’s nomination to translate to handling of other Bush executive picks, specifically those for the courts, Cardin wasn’t sure. “I don’t know. I’m not sure about that.”

But Sen. Arlen Specter (R-Pa.), ranking member on the Judiciary Committee, said he thinks Mukasey could spell better relations over other Bush nominees, saying, “It might. It’s a good start.”

But clearly, Democrats have their doubts. Senators have yet to forget the showdown with Republicans just two years ago over Bush’s stalled judicial nominations, when then-Majority Leader Bill Frist (R-Tenn.) nearly invoked the “nuclear” option to avert Democratic filibusters on those picks. Ultimately, a group of moderates struck a deal to keep the filibuster intact in exchange for their votes on certain controversial nominees, but the scars remain.

One Democratic Senate leadership aide suggested the mistrust lingers and Mukasey was less a Bush olive branch to the now- majority party and more about a recognition that he couldn’t clear a controversial attorney general at the embattled department.

“There’s no détente,” the aide said. Mukasey’s “nomination was made from a position of weakness.”

A Republican leadership aide had another take on the reasoning but agreed that there’s little chance the two parties will abandon their long-standing fights over Bush’s nominees, regardless of the apparent harmony over Mukasey.

“This is an anomaly,” the staffer said. “Democrats are going to continue fighting the president’s nominees, regardless of how mainstream, qualified or intelligent they are.”

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