Bipartisan Deal on Judicial Picks Draws Ire From Both Sides of Aisle

Published May 28, 2004, issue of May 28, 2004.
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WASHINGTON — A bipartisan deal to break the Senate logjam over judicial nominees is drawing criticism from both liberal and conservative activists.

Under the deal, which was negotiated by the White House and by legislative leaders from both parties, Democrats will permit the Senate to vote promptly on 25 of President Bush’s less controversial judicial nominees. In exchange, the president has agreed not to use recess appointments to circumvent Democratic attempts to filibuster his most controversial nominations.

Activists on both sides insist that their respective allies in the Senate have fumbled away a politically advantageous issue.

“It was a mistake to give up the issue of Bush’s stacking the courts with conservatives. In an election year, it’s an important issue for the Democrats,” said a prominent executive with a liberal Jewish group in Washington, on condition of anonymity. “Standing up and railing against Bush’s most extreme nominees actually works well for Democrats.”

Liberals, however, are voicing criticism only behind the scenes and seem to be gaining comfort from the chorus of complaints coming from the right.

In both private and public protests, conservatives are claiming that the White House and GOP leaders in the Senate are undermining the strategy of portraying Democrats as obstructionists who are holding the judicial nomination process hostage to partisan politics. Conservative critics also say that the deal — which was hammered out during talks between Senate Minority Leader Tom Daschle, a South Dakota Democrat, Majority Leader Bill Frist, Tennessee Republican, and White House Chief of Staff Andrew Card — will make it much more difficult for the president to fight for the appointment of three nominees being filibustered by the Democrats: Janice Rogers Brown, Carolyn Kuhl and Priscilla Owen.

Earlier this year, Bush appointed two conservatives — Alabama Attorney General Bill Pryor and U.S. District Court Judge Charles Pickering of Mississippi — to federal appeals court seats while Congress was in recess. Both men were strongly opposed by civil rights and pro-choice groups. Senate Democrats were concerned that during the upcoming Memorial Day recess, the president would unilaterally install another controversial nominee.

The president is allowed to make appointments through an executive order when Congress is in recess. Such appointments last only through the president’s term in office, while judges confirmed by the Senate are appointed for life.

Senator Charles Schumer, the New York Democrat who was one of the chief leaders of the campaign to block Bush’s conservative nominees, boasted, “The White House waved the white flag here.” But one liberal activist noted that although the deal puts a stop to recess appointments, it does open the door to 25 Bush nominees — most of whom have some combination of strong anti-abortion views, conservative positions on church-state issues and opposition to gay rights.

“It would have been better to risk a couple of recess appointments that would anyway expire in less than a year, and leave the court vacancies vacant for [Democratic presidential candidate John] Kerry to fill,” said an executive with a liberal Jewish organization. “These 25 are appointed for life, don’t forget.”

Similar criticisms were voiced privately by non-Jewish liberal organizations, in an apparent attempt not to openly embarrass the Congressional Democratic leadership.

“Like any compromise, this is somewhat of a mixed bag,” said Mark Pelavin, associate director of the Reform movement’s Religious Action Center, which has opposed several of Bush’s most conservative nominees. “Clearing the backlog in the process is a good thing, and reducing the partisan sniping on judges is also good. It keeps the most extreme of Bush’s nominees off the bench, yet there are a couple in the pile who, if I had my druthers, would have been on the no side of the ledger rather than the yes side of the ledger. But I think overall it’s not a bad compromise.”

Sammie Moshenberg, the Washington representative of the National Council of Jewish Women, whose organization was the most active in opposing some of Bush’s nominees — particularly ones who oppose reproductive choice — said that her organization is “relieved to know that extreme nominees who have no commitment to constitutional rights” will not be appointed, even to short “recess appointments.” That makes the deal “helpful” she said. Moshenberg pointed out that an attempt by the Democrats to maintain the logjam and drag the process until November could have backfired. “We don’t know who will be elected to the White House. We also don’t know what the Senate will look like,” she said.

Nan Aaron, founder and president of the Alliance for Justice — the most prominent Washington group in the fight against Bush’s nominees — termed the deal a “positive development,” but said it is “definitely just a temporary measure” that will not hold for long. Whatever the results of the November elections are, she said, “we will return to the acrimonious debate that has recently characterized this issue.”

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