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GOP Plans 'Marathon' On Judges
Posted by Jeff (Guest) jeff@attoz.com - Saturday, November 8 2003, 19:16:15 (EST)
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GOP Plans 'Marathon' On Judges
Sat Nov 8, 8:30 AM ET
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By Mike Allen, Washington Post Staff Writer

A brewing rebellion by conservative activists has prompted Senate Republican leaders to plan to devote at least 30 straight hours of debate next week to their bid to confirm a handful of judicial nominees being blocked by Democrats. The Republicans are bringing in food and cots for the "Justice for Judges Marathon," scheduled for Wednesday night through Friday morning.

Despite the showiness, neither side expects the spectacle to change a single vote or resolve the bitter impasse. Like previous acts in the high-decibel fight over the lifetime judgeships, the planned all-nighter is unlikely to stir the typical voter's attention or concern, according to pollsters and lawmakers.

Still, both parties see the past nine months of angry wrangling over President Bush (news - web sites)'s nominees as a prime motivational issue for their most loyal supporters -- the politically active GOP conservatives and Democratic liberals who can be counted on to give money and turn out voters if they are fired up over sharply partisan issues such as judgeships.

But the standoff also carries considerable risks for both parties. By continuing to filibuster a few of Bush's most conservative nominees, Democrats could make it easier for the GOP to portray them as politically motivated obstructionists -- a long-running Republican theme.

Bush and Republicans, meanwhile, may irritate rather than please their most conservative backers by promoting controversial judges who cannot win confirmation even in a GOP-controlled Congress. Some of those activists are accusing Senate GOP leaders of going too easy on the Democratic minority, a prime reason for next week's talkathon. No one in the Capitol expects it to solve anything, but the leaders hope it will convince voters that Democrats are to blame.

"I don't believe the public pays attention until we stop doing other things and just do this -- and other things don't get done because of this," Sen. Rick Santorum (news, bio, voting record) (Pa.), chairman of the Senate Republican Conference, said in an interview.

Republicans hold 51 of the Senate's 100 seats, making it fairly easy for Democrats to prevent up-or-down votes on targeted nominees through delaying tactics, which require 60 votes to overcome. Three judicial nominees are now in limbo because of the delaying strategy, and three or four more appear likely to join the group soon.

When Republican officials appear on conservative radio talk shows, they are often barraged with questions about why the GOP is not making Senate Democrats pay a higher price for their tactics. Callers, invoking the movie "Mr. Smith Goes to Washington," say they want to see senators reading from phone books in a classic filibuster.

Stephen Moore, president of the conservative Club for Growth, said a recent mailing to raise money for candidates yielded empty envelopes from two dozen former givers who said they will not contribute again until Republicans are harder on Democrats over the judges issue. "They want to see that at least Republicans are able to exact a pound of flesh, and that hasn't happened," Moore said.

But traditional filibusters are a thing of the past, largely because the minority party can use less dramatic parliamentary ploys -- such as repeated quorum calls -- to avert confirmation votes. The last all-night filibuster was held 11 years ago, according to the Senate Historian's Office.

Senate Republican leaders have decided to dramatize the fight with the next best thing: a 30-to-40-hour debate that will test the patience of the most hardcore C-SPAN watchers. Sen. John McCain (news, bio, voting record) (R-Ariz.) has suggested that the chamber be divided into snoring and non-snoring sections.

Santorum said one goal is to force votes in the wee hours. He acknowledged that many conservatives "don't think we're fighting hard enough."

"From a standpoint of accomplishing something, that's probably not true," Santorum said. "From the standpoint of putting up the fight, there's probably more we could do." Democrats, he said, "may be winning some battles, but I think, long term, they're going to lose several wars," especially if Republicans can portray them as gumming up Congress's work, he said.

Republicans contend that this is the first time in the nation's history that filibusters have been used to block votes on federal court nominees. "It can't be tolerated. It won't be tolerated," said Senate Majority Leader Bill Frist (R-Tenn.).

Democrats respond by saying that Republicans used other means -- such as burying nominations in committee -- to block the nominees of President Bill Clinton (news - web sites), and also attempted filibusters.

With Bush calling the process "broken," GOP leaders are researching parliamentary moves that might allow them to end the delays and confirm a nominee with 51 votes. But Democrats would be likely to respond to this "nuclear option" by shutting down all Senate business.

The stalemate compelled Miguel A. Estrada, tapped for the U.S. Court of Appeals for the D.C. Circuit, to give up in September after Republicans failed in seven tries to cut off debate. Estrada's friends said that he felt like a pawn in a political shouting match that was going nowhere, and that he finally asked Bush to withdraw his name.



Republican pollsters, trying to determine whether the Estrada standoff was hurting Democrats with Hispanic voters, found that many respondents thought the questions concerned the "CHiPs" actor Erik Estrada.

Mark Mellman, a Democratic pollster who has tested the issue for groups that want to be players in any Supreme Court confirmation fight, said judicial nominations consistently poll dead last among voter concerns. "Both sides should be discouraged," Mellman said. Efforts to elevate the issue, he added, amount to "wishful thinking and gratifying the base."

The parties have used the issue's obscurity to their advantage. Bush has been able to propose extremely conservative judges, getting credit from his most ardent supporters but not alienating the more moderate swing voters he will need next year.

Democrats, while apparently paying little price so far with the broader electorate, have been able to excite base supporters who were disillusioned by the results of the 2000 and 2002 elections. "These are values fights, and it's been an important way for Democratic senators to demonstrate their determination to be effective," said Ann Lewis, who was Clinton's communications director.

Democrats are quick to note that the Senate, while blocking a handful of candidates, has confirmed the great majority of Bush's judicial nominees -- 167 so far. That is about the same number of confirmations Clinton achieved at the same point during his first term. Democrats say 95 percent of federal judicial seats are filled, the lowest vacancy rate in 13 years.

They say they are blocking only nominees with the staunchest right-wing records, letting dozens of less conservative candidates get through.

"It would be impossible to stop all of them," said Sen. Charles E. Schumer (D-N.Y.). "We are stopping the most extreme of the judges for the most important courts."

Republicans have their own statistics, saying the confirmation rate in Bush's two years is below that of any of the previous four presidents. Appeals court nominees, they say, were never filibustered before. They have also accused Democrats of being, in individual cases, anti-Catholic, anti-South and anti-Hispanic.

Democrats are using the filibuster to block U.S. District Judge Charles W. Pickering Sr. of Mississippi, nominated for the U.S. Court of Appeals for the 5th Circuit, based in New Orleans. Democrats had rejected him in 2001 when they controlled the Senate, but Bush renominated him as soon as Republicans regained the majority in January.

Also blocked by filibusters are Texas Supreme Court Justice Priscilla R. Owen, nominated for the 5th Circuit, and Alabama Attorney General William H. Pryor Jr., nominated for the 11th Circuit, based in Atlanta.

Among the candidates for filibusters in coming weeks is Claude A. Allen, deputy secretary of health and human services (news - web sites), nominated for the 4th Circuit, based in Richmond. Others include Los Angeles Superior Court Judge Carolyn B. Kuhl, nominated for the 9th Circuit, based in San Francisco, and California Supreme Court Justice Janice Rogers Brown and Brett M. Kavanaugh, the White House staff secretary, who have been nominated for the D.C. Circuit.

Democrats said they view the Kavanaugh and Brown nominations as a sign that Bush plans to make no accommodation to get judges confirmed. Kavanaugh was a prominent member of the legal team of independent counsel Kenneth W. Starr's investigation of Clinton. Brown once referred to the New Deal era as "the triumph of our socialist revolution" and has disputed whether the Bill of Rights applies to the states.

C. Boyden Gray, White House counsel to Bush's father, started a group called the Committee for Justice to lobby for blocked nominees, primarily through television commercials in the states of senators who might switch or who are politically vulnerable. The group began a campaign Wednesday focusing on Brown, an African American and a sharecropper's daughter.

"There's a lot of interest in making her a real cause célèbre," said Sean Rushton, the group's executive director.

Staff writer Helen Dewar contributed to this report.



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-- Jeff

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