Robert Novak

WASHINGTON -- On May 9, 2001, President Bush nominated U.S. District Judge Terrence W. Boyle of Edenton, N.C., to the 4th Circuit Court of Appeals. It took nearly four years for the Judiciary Committee to send his nomination to the Senate floor. It has languished there for more than a year with no prospect for Senate confirmation and no apparent interest by the Republican leadership.

Boyle has been on the federal bench for 22 years, and his only liability is that he is a conservative who spent a year on Sen. Jesse Helms's staff. While he is the Bush appellate court nominee who has been waiting for confirmation the longest, he is not alone. Ten other prospective appeals judges face Senate inaction, with the window of opportunity in the second Bush term already closing. They seem unaffected by last year's avoidance of a constitutional crisis over the confirmation process and the approval of two Supreme Court justices.

Sean Rushton of the Committee for Justice this week e-mailed his conservative network that the "push for appellate confirmations is on." But there has been no attention given Boyle and his fellow nominees by Senate Majority Leader Bill Frist, who has been taking victory laps after appearing to break the Senate judicial confirmation impasse. Asking whether Republicans will raise the issue to "excite conservatives, highlight liberal extremism and force Democrats into compromising choices," Ruston said, "November's election may rest on the decision."

The moderate bipartisan "Gang of 14" senators last year averted a showdown on whether Frist would use the "nuclear option" to break multiple judicial filibusters. That immediately resulted in confirmation of three nominees opposed by the liberals, but the fate of Boyle and the other four appellate nominees facing filibusters was left pending. Since then, only four Bush nominees have been confirmed. Six other appellate nominees await confirmation, and an additional nine such seats are vacant.

This situation does not interest prominent Senate Republicans or their allied business lobbyists in Washington as time grows short. Nothing will be done in 2006 after the August recess. Even assuming that Republicans retain Senate control in this year's elections, the word on Capitol Hill is that September 2007 is the deadline for confirmation of Bush's judges before Democrats dig in.

Thus, Sen. Edward M. Kennedy's filibuster strategy may not be a total failure after all. While it did not block conservatives from the Supreme Court, it is keeping open 20 appellate judgeships for a Democratic president to fill.

Robert Novak

Robert Novak (1931-2009) was a syndicated columnist and editor of the Evans-Novak Political Report.

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