GOP Judges Offensive

Posted: Oct 27, 2003 12:00 AM

WASHINGTON -- Senate Majority Leader Bill Frist, frustrated by the audacious campaign of Democrats blocking judicial confirmations, begins a counter-offensive this week. He will start by returning to one of President Bush's nominees generally given up for dead. The effort will accelerate throughout this congressional session into mid-November, with one roll-call vote after another.

None of this may confirm any of the federal appellate court nominees marked for defeat by Sen. Edward M. Kennedy, the Democratic grand master, because they are deemed too conservative. This effort is intended to "refocus" (the word used by GOP strategists) on the unprecedented filibuster campaign to prevent a sitting president from selecting his own judiciary. The refocused struggle would peak early in the 2004 election year with a frontal assault on filibuster rules. Although no justice seems ready to leave the Supreme Court of his own volition this year, control of the highest court is ultimately at stake.

The GOP base, needed intact to re-elect George W. Bush, is angry -- angry with Kennedy's Democrats for blocking the judges, angry with Frist's Republicans for not trying harder. That could cost Bush's re-election if nothing is done.

Many Republican senators, mirroring their business supporters, would like to concede Kennedy's triumph on judges and get on with their own agenda. The GOP's will to fight has seemed lacking. Sen. Orrin Hatch, who as Judiciary Committee chairman manages this issue for the Republicans, has been passive. He has not aggressively demanded floor time to debate judges after the Senate refused seven times to invoke cloture on Miguel Estrada's now withdrawn nomination for the important District of Columbia Circuit.

But rank-and-file Republicans care deeply. The president on the road mentions the failure to confirm judges in nearly every speech, and it evokes more applause than anything else. Republicans are sensitive to complaints that Frist is too timid to wage a 24-7 strategy to let Democrats talk themselves to death. They respond that some 45 disciplined Democrats cannot be forced to surrender.

Now, Frist is about to mount a campaign in three phases, lasting through what's left of this year's session.

Phase One: Start this week with a cloture vote on the nomination of U.S. District Judge Charles Pickering Sr. of Mississippi for the 5th Circuit in New Orleans. Pickering, bottled up in the Judiciary Committee during the 2001-02 Democratic interregnum, has just been sent to the Senate floor.

Phase Two: Next, order a cloture vote for the second time on Alabama State Attorney General William Pryor for the 11th Circuit in Atlanta. Claims by opponents that Pryor's "deeply held beliefs" taint him for the court have produced accusations of anti-Catholicism.

Phase Three: Vote on three female nominees. Attempts to get cloture on Texas Supreme Court Justice Priscilla Owen's nomination for the 5th Circuit has failed three times. California Superior Court Judge Carolyn Kuhl's two-year-old nomination for the 9th Circuit in San Francisco is coming to the Senate floor for the first time. Just released by the Judiciary Committee and already threatened with a filibuster is California Supreme Court Justice Janice Rogers Brown, an African-American.

Failure to reach 60 votes for cloture on each of these three women is scheduled to be followed by consideration of the bill co-sponsored by Frist and conservative Democratic Sen. Zell Miller of Georgia. That measure would reduce the number of votes needed to end filibusters on nominations. That, too, will be filibustered in order to defeat it.

All this refocusing is intended to set the scene for a bitter battle in next year's session of Congress. At that time, an effort may be made to rule out of order a filibuster against judicial nominations -- the "so-called" nuclear solution. This would require only 51 votes, but Frist does not even have that many today because of reluctance to tamper with the traditions of the Senate.

Whether or not Bill Frist's offensive eventually places any of these well-qualified judges on the bench, it will sound a stentorian refusal to surrender. That means a Republican president and a Republican-controlled Senate have not acquiesced in letting Ted Kennedy determine the membership of the federal judiciary. The battle resumes today.