WASHINGTON -- As President Bush's legal aides weeks ago began preparing his first judicial selections, they assumed the widely admired Rep. Christopher Cox would be included. But his name was missing from Wednesday's 11 appellate court nominations, reflecting White House tactics in starting a prolonged, brutish battle over confirming judges.
Cox's nomination has been held up because the Democratic senators from his own state of California do not support him, and a high-profile struggle over his confirmation could bring down other nominees. So, Bush's package includes two African-Americans previously appointed by President Bill Clinton, confounding the Democratic strategy to reject all of Bush's judges.
But those nominees can still be defeated singly in the evenly divided Senate. Democrats are resolved to keep Bush from placing a conservative stamp on the federal judiciary. They have been blocking Bush's Justice Department appointments while demanding an absolute veto on district judges. They are trying to impose an effective veto on appellate judicial prospects such as Chris Cox.
Cox, a former Reagan White House aide in his seventh term in Congress, is part of his party's House leadership and a conciliatory figure on Capitol Hill. But California's two Democratic senators were not happy when he accepted the offer of a seat on the 9th Circuit Court of Appeals. Barbara Boxer opposed Cox as an anti-abortion conservative, and Dianne Feinstein issued a non sequitur: "Chris Cox comes from probably the most conservative district in the state (in Orange County). It isn't the mainstream in the state of California by a long shot."
Also delayed temporarily by Bush tacticians was Peter Keisler, a Washington corporate lawyer slated for the 4th Circuit in Richmond, Va. He is a 37-year-old former Reagan aide, law clerk to and defender of Robert Bork. Democratic senators in his home state of Maryland don't like him.
The two African-Americans in Bush's first batch of judges make a total stall difficult for Democrats. One is Richmond, Va., lawyer Roger Gregory, who was named to the 4th Circuit in Clinton's recess appointment (unprecedented for lifetime tenure) after the Senate did not confirm him. The other is Clinton-appointed District Judge Barrington Parker Jr. of New York City for the 2nd Circuit. Bush also is nominating two judges mainly to please home state senators: Ohio Supreme Court Judge Deborah Cook and District Judge Edith Brown Clement of Louisiana.
But the other seven selections comprise an all-star conservative team of lawyers who can be rejected only for their ideology. Democrats may have trouble turning aside 39-year-old Miguel Estrada, a law partner of Solicitor General-designate Ted Olson and a former assistant solicitor general, for the District of Columbia Circuit (the second most important court in the country). This is seen by some Democrats as the time to get rid of the brilliant Honduran immigrant, who could, as a Republican, become the first Hispanic Supreme Court Justice.
Named to the D.C. court for the second time is esteemed appellate lawyer John Roberts, a former law clerk to Chief Justice William Rehnquist, whose nomination by the first President Bush died in the Democratic Senate. Prof. Michael McConnell of the University of Utah, named to the 10th Circuit, is a nationally renowned conservative appellate lawyer.
Former Ohio Solicitor Jeffrey Sutton (another second-time nominee after failing to be confirmed during the first Bush administration) is a 40-year-old former law clerk of Justice Antonin Scalia and a famous advocate of states rights. District Judge Dennis Shedd of Greenville, S.C., a former aide of Sen. Strom Thurmond, and Texas Supreme Court Justice Priscilla Owen are dependable conservatives.
Chief District Judge Terrence Boyle of Elizabeth City, N.C., is yet another former nominee blocked by the Democrats a decade ago. Sen. Jesse Helms made clear to Clinton that no new judge would sit on the 4th Circuit until Boyle did. Now, North Carolina's junior senator, John Edwards, abandoning pretensions of moderation as he eyes the Democratic presidential nomination, demands parity on the 4th Circuit before Boyle is confirmed.
By holding back on Cox and Keisler, the president has sent to Capitol Hill judges who are accomplished, conservative, non-controversial and not susceptible to a mass execution in the Senate. The Democrats must pick them off one by one, and it will be bloody.