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Reid’s Pledge to Move Three Before Recess Fails to Appease Minority

Despite efforts to bring the near-constant partisan fighting over Democrats’ handling of President Bush’s judicial nominations to an end for the year, Republican leaders are planning a renewed push on the issue after the Memorial Day recess and will use the next several weeks to lay the groundwork for the fight, lawmakers and aides said.

Senate Majority Leader Harry Reid (D-Nev.) has struck a deal to bring three circuit court nominees to the floor by next Friday, and even if he follows through, Republican Senators said Tuesday they won’t be satisfied. GOP Senators want Democrats to approve at least 15 of the lifetime appellate court hopefuls by this summer — the average number advanced by a Congress during the final two years of the term of a president from the minority party.

Just seven of those federal judges have won Senate approval during the 110th Congress. If three more move in the next few weeks, Democrats will still miss the average of 15.

Sen. John Cornyn (R-Texas), a Judiciary Committee member, called it a “safe bet” that Republicans will be agitating for a battle after the Memorial Day break to press the case for more judicial nominations before August.

To keep pressure on Democrats and to lay the groundwork for the coming fight, GOP leaders have begun what they term an “education and outreach effort” on the issue of nominations. For instance, Cornyn, as vice chairman of the Senate Republican Conference, has been responsible for arranging floor speeches by Senators to highlight nominees from their home states whose appointments have languished. Members have also used the floor to make the case for Republicans’ broader message that Democrats have unfairly stalled President Bush’s nominees, and aides said those efforts would continue over the next two weeks. The effort is designed to counter Democratic charges that Bush’s picks are too partisan and to make the case that “they are well-qualified judges,” one aide said.

GOP leaders also will work informally with outside conservative organizations, aides said, to make sure the groups are kept abreast of what Senate Minority Leader Mitch McConnell (R-Ky.) is doing on the issue.

Bringing conservative activists closer into the fold could help McConnell gin up more public interest in the issue, and their involvement has kept the issue bubbling.

Conservatives have chafed at McConnell’s caution, favoring a more confrontational approach. Leadership aides, while sympathetic, said those complaints might be premature and that McConnell has not ruled out more aggressive efforts.

“There’s a process for things, and you’ve got to take it a little bit at a time. We’re not at the 11th hour yet,” said one GOP leadership aide.

But even Cornyn acknowledged that the GOP faces major challenges in winning that fight because they lack few opportunities to force Democrats’ hands.

“That’s the part that’s hard,” Cornyn said, adding that Republicans are unwilling to use as leverage must-pass legislation such as the upcoming war supplemental spending bill.

“We will continue to keep the heat on to try to get more,” Cornyn said. “It’s clear we’re not going to get any more just by asking, so we’ll continue to use the tools available to try to extract them.”

Republicans are weighing their options, which include holding bipartisan legislation hostage or trying to trip up Judiciary Committee business to force consideration of outstanding court picks. But GOP Senators say they are reluctant to put certain bills like the supplemental in the crossfire, and time is ticking on the remainder of the session.

“We have to try to execute leverage wherever it exists, but the fact of the matter is, there are few opportunities and fewer vehicles as time goes on,” Sen. John Thune (R-S.D.) said.

Republicans successfully pressured Reid into agreeing to advance three federal appellate nominees by Memorial Day after McConnell threatened to filibuster a popular, bipartisan highway measure last month. At the time, Reid said he would do his best to follow through, though he stopped short of giving his guarantee.

Since then, Judiciary Committee Democrats have been working to move several circuit court picks. While several are on deck, it appears increasingly unlikely that the trio will be ready for Senate passage with just a few days to go before Senators go home for the week. The most likely to be approved is G. Steven Agee to fill a vacancy on the U.S. Court of Appeals for the 4th Circuit.

Jim Manley, spokesman for Reid, said his boss remains committed to advancing the three judges, but Republicans have caused some of the delay. Manley referred to a Judiciary Committee vetting of two nominees during which Republican lawmakers questioned nonjudicial aspects of the duo’s records, such as traffic tickets.

“As always, Republicans are not making it easy for anyone,” Manley said. “In fact, at last week’s hearing, they did damage to their efforts to confirm those Republican nominations. Sen. Reid intends to do the best he can to get them confirmed.”

Democrats remained unconvinced of the need to move further nominations and signalled they see it as little more than an effort by McConnell to reignite a political issue that has served Republicans well in previous election cycles.

“As long as we don’t filibuster 61 judges as they did with President Clinton, then we beat them on the numbers,” said Judiciary Chairman Patrick Leahy (D-Vt.), who along with Reid has questioned the political motivations behind GOP complaints about the nomination process in recent months.

“This is an election year, so there’s lots of energy to do anything that will help their side in the election process,” Sen. Ben Nelson (D-Neb.) said. Nelson, who led a bipartisan group known as the “Gang of 14” in 2005 that defused GOP threats to eliminate the ability of the minority to filibuster judges, said that at this point, there is little in common with that situation.

Nelson noted that in 2005, then-Majority Leader Bill Frist (R-Tenn.) planned to use the “nuclear option” to end filibusters. That move sparked public interest — and alarm at the potential damage it could do to the Senate — resulting in the Gang of 14 forcing a compromise on the two leadership teams.

But with Republicans out of the majority and possessing little leverage to force the issue, Nelson said it is unlikely anything like 2005 will occur. “We dealt with it in the context of the nuclear option. That part changes things,” Nelson said, adding that as long as Reid continues to put a premium on fairness, Republicans should be careful to not push too hard.

“Leverage is an interesting concept — it works when you have it and it doesn’t when you don’t,” Nelson said. “You have to be careful not to overplay your hand. Sometimes you have the cards, sometimes you bluff and sometimes you don’t have the cards,” Nelson said.

Sen. Benjamin Cardin (D-Md.), who sits on that panel as well, said Tuesday that Agee is likely to advance but remained cautious in predicting whether Democrats would deliver two more within the next seven working days. Cardin said that if Democrats fall short, it won’t be because they weren’t trying, but rather because they were awaiting information such as updated American Bar Association ratings.

Cardin also noted that it would be unfair to blame Senate Democrats for failing to approve a reasonable number of Bush’s judicial picks this Congress since the president was slow to make nominations. He also reminded that President Bill Clinton left the White House with more judicial vacancies than will Bush, saying “Democrats have a better record.”

Following Agee, Senate Democrats are working to bring to the floor the nominations of Helene White and Raymond Kethledge, both of whom are awaiting approval to serve on the U.S. Court of Appeals for the 6th Circuit. That duo, as well as Agee, meet the quota agreed to by Reid and McConnell, but they aren’t atop the GOP’s priority list for circuit court picks this Congress.

Republicans are particularly interested in more controversial picks such as Peter Keisler to the U.S. Court of Appeals for the District of Columbia Circuit and Steve Matthews and Robert Conrad to the 4th Circuit. Conrad might be the next big battle for Republicans since they believe he meets all of the Democratic standards for approval, and, politically, could serve as the new darling for their conservative base.

Despite Reid’s promise, Thune suggested that the judicial organizations, like GOP Senators, will be “bruising for a fight right up to the end.”

Sen. Lindsey Graham (R-S.C.) said that if Democrats fall short of advancing three more by the Memorial Day recess, and fail to match the 15 nominations mark this Congress, there could be consequences down the road. He said Democrats are “setting a model” that could be repeated if a Democrat wins the White House in November and wants support from the GOP for nominations to the federal bench.

“I hope people will think long term, not short term,” Graham warned, saying that both Democratic presidential hopefuls Sens. Barack Obama (Ill.) and Hillary Rodham Clinton (N.Y.) are part of the holdup and that if either is elected, “things like that are at stake.”

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