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By Curt Levey Posted in Judiciary Committee — Comments (4) / Email this page » / Leave a comment »

None of the judicial nominees were voted out of the Senate Judiciary Committee today because none of them were voted on. As it turns out, today's special committee meeting was used to burn holds on Peter Keisler (D.C. Circuit) and Kent Jordan (3rd Circuit), rather than to vote on any of the more controversial nominees, i.e., Boyle, Myers, Smith, and Haynes.

Even before today's meeting, CQ Today declared in a Sept. 18 article that "the conflict over President Bush’s most contentious appellate court nominations in the 109th Congress has been all but abandoned." (full text below the fold) In truth – with a committee vote on at least some of the contentious nominees likely on Thursday, and a lame duck session of the 109th Congress yet to come – the fight goes on.

CQ notes that, even if the contested nominees get out of committee, Senate Majority Leader Frist has no plans for floor votes on judicial nominees because he "has devoted the Senate’s September schedule almost exclusively to national security-related issues." True, but let me remind Sen. Frist that judges are a national security-related issue.

CQ TODAY
September 18, 2006

CONFLICT ALL BUT OVER AS SENATE PANEL PREPARES TO CONSIDER COURT NOMINATIONS

By Keith Perine

The conflict over President Bush’s most contentious appellate court nominations in the 109th Congress has been all but abandoned even as a Senate panel prepares to consider four nominees on Tuesday.

Republican leaders have carefully avoided re-igniting the conflagration that consumed the Senate for months in 2005, much to the frustration of conservative activists who have urged an all-out battle.

The Senate returned five nominees to the White House when it adjourned for its August recess, and Bush re-nominated all five after the Senate reconvened.

Senate Judiciary Chairman Arlen Specter, R-Pa., has put four of the nominees on the panel’s agenda for a Tuesday markup.

Majority Leader Bill Frist, R-Tenn., has avoided forcing another showdown over judges because there is too little appetite among fellow Republicans for a battle on the scale of the 2005 confrontation that nearly caused a historic parliamentary meltdown.

“We’ve been arguing since the spring that Republican leaders needed to bring these nominees to a vote, and for those that were blocked, needed to schedule substantial floor time,” said Sean Rushton, executive director of the Committee for Justice, a conservative group that lobbies for Bush’s judicial nominees. “That advice has gone unheeded.”

Last year, Frist threatened to execute an arcane parliamentary move, dubbed the “nuclear option,” to end minority filibusters of judicial nominees. It was never clear whether Frist had enough backing from his fellow Republicans to succeed.

Ever since a bipartisan “Gang of 14” senators struck a deal in May 2005 averting that showdown, Senate Republicans and Democrats have avoided another confrontation.

Democrats have backed down a bit as well, allowing confirmation votes on some conservative nominees.

Although conservative activists had been beseeching Frist to fulfill his pledge to secure up or down votes on all nominees, lately they have contented themselves with pushing him to force Democrats to filibuster one of the more contentious nominations in the hope that it would reap political dividends in November.

“The broader concern is the lack of public debate where both sides present their conflicting philosophies over the judiciary, which allows the public to take that into consideration on Election Day,” Rushton said.

Specter wanted the committee to take action Sept. 14, but he could not muster a quorum, even among his fellow Republicans.

If enough members show up Tuesday, Specter could stage votes on the nominations of Terrence W. Boyle and William J. Haynes II for the U.S. Court of Appeals for the 4th Circuit; and 9th Circuit nominees Norman Randy Smith and William G. Myers III. If the committee does not vote on the nominations on Tuesday, they will be on the agenda for a Sept. 21 markup.

In any event, Frist, who has devoted the Senate’s September schedule almost exclusively to national security-related issues, has given no indication that he intends to devote any of the dwindling pre-election calendar to a time-consuming fight over judges.

Boyle, a North Carolina federal district judge, has been dogged by conflict-of-interest allegations that he has said are meritless. He also is opposed by an array of police organizations that see him as hostile to law enforcement and unqualified to be an appellate judge.

It’s unclear whether Haynes, currently the Defense Department’s general counsel, has enough votes to win approval from the committee, which includes 10 Republicans and eight Democrats. Haynes has drawn fire from Democrats, who say they need to know more about his role in formulating administration policies on the handling of detainees held by the U.S. military in Cuba , Iraq and Afghanistan .

Conservative activists have accused South Carolina Republican Lindsey Graham of bottling Haynes up in committee, a charge Graham has denied. But Graham was circumspect about Haynes’ nomination even before becoming embroiled in tense negotiations with administration officials over prospective legislation to establish ground rules for military tribunals for the detainees.

Dianne Feinstein, D-Calif., had vowed to block the nomination of Smith, who lives in Idaho . Feinstein says that seat on the 9th Circuit is traditionally reserved for a Californian. But Specter hinted last week that an arrangement has been brokered, clearing the way for Smith’s confirmation by the full Senate.

Environmental activists and Native American groups say Myers — who served as the Interior Department’s top lawyer from 2001 to 2003 — is too hostile to environmental protection laws. Democrats filibustered Myers in the 108th Congress.

Specter has not yet held a hearing on the president’s fifth nomination, that of Michael B. Wallace to the 5th Circuit.

The American Bar Association rated Wallace as “not qualified” for the post. Conservatives have assailed the rating as politically motivated, and Specter has said he will not give the rating “any weight at all.”

But he has not said when a hearing for Wallace might take place.