October 25, 2001

Judicial Battle Not Over Yet

By Paul Kane

Senate Republicans say they called a "cease-fire" on their appropriations blockade after realizing that President Bush would not be able to mount a campaign of public pressure on the Democratic majority over judicial nominations.

Vowing to revisit the issue after Christmas, Republicans say Bush's almost singular focus on the war on terrorism forced them to give up the nearly three-week filibuster of Democratic attempts to move appropriations bills without getting a single guarantee or assurance that more judges will be confirmed.

Easing the appropriations blockade increases the ability of the House and Senate to wrap up the "must-do" spending bills, but some leaders are still predicting that Congress will remain in session until at least early December.

Senate Minority Leader Trent Lott (R-Miss.) noted that Congress still has to complete an economic-stimulus package, the airline security bill and anti-terrorism legislation in addition to finishing the appropriations process. With Thanksgiving falling early this year, Nov. 22, Lott said Congress has little time left to meet the goal of a pre-Thanksgiving adjournment.

"You're talking about three weeks to do two or three [major] bills plus appropriations. It would be pretty hard with the agenda we must do. That's a load to get done before Thanksgiving."

Asked the same question, Senate Majority Leader Thomas Daschle (D-S.D.) was slightly more optimistic but far from definitive about adjournment. "We are still, maybe optimistically and maybe too optimistically, still hopeful that we can complete all of our work before Thanksgiving," he said.

House Republican leaders still believe both chambers can wrap up business before Nov. 22, but they are now acknowledging that they will not meet their goal of leaving by Nov. 9, something they believed possible as recently as last week.

With the House having passed 12 of the 13 spending bills, and the Senate still having four more to go, House leaders are placing the blame squarely on the upper chamber for not moving fast enough.

"We can only control what we can control," said House GOP Conference Chairman J.C. Watts (Okla.). "The November 9 date could be accomplished if it were left up to us."

In another sign that the Nov. 9 date was no longer operative, aides said the House was preparing to move a continuing resolution to fund the government through Nov. 16.

After a bicameral GOP leadership meeting on appropriations Wednesday, House Appropriations Chairman Bill Young (R-Fla.) privately told Speaker Dennis Hastert (R-Ill.) that the spending process couldn't be completed until the end of November, according to a senior GOP aide.

Both Appropriations panels also lost time this week because of the continued shutdown of most of the House and Senate office buildings, leaving staff unable to obtain documents to begin working on conference reports.

Previously, the main impediment to speeding along the appropriations process in the Senate had been the roadblock Republicans were using on the spending bills in an attempt to gain the confirmation of more judicial nominees. Since early October, Lott and other GOP leaders had insisted that was the only way they could force Democrats to consider more judicial nominees.

But Democrats never gave in, instead arguing that they were moving at a faster clip on judicial nominations than Republicans ever did in the previous six years when they had the majority under a Democratic administration.

"I'm not giving any assurances one way or the other," Judiciary Chairman Pat Leahy (D-Vt.) said Tuesday. "I don't make deals, I just do my job."

After defeating a second attempt to bring up the foreign operations appropriation bill Tuesday, Lott emerged from the GOP luncheon and announced that Republicans were giving up the strategy of blocking the spending bills. He said the "intractability of the Democrats" and a reworked sense of priorities left them with no choice but to go forward on appropriations.

"We're not seeking leverage now. What we're seeking is to get our work done," he said.

But other GOP leaders and aides acknowledged that Bush's focus on the war made it impossible for him to use the presidential bully pulpit to attack Democrats for blocking judicial nominations because of political ideology - a tactic former President Bill Clinton employed often in the relatively peaceful late 1990s.

"Right now he's engaged in other issues," said Minority Whip Don Nickles (R-Okla.). At a pre-Sept. 11 White House meeting, Nickles and GOP Policy Committee Chairman Larry Craig (Idaho) personally asked Bush to take a prominent role in going after Democrats on the judicial nominations issue, a request they believed he was ready to honor.

That hope fizzled, however, after Sept. 11. The only pressure Bush applied came during the now regular White House meetings with Lott, Daschle and their House counterparts, Speaker Dennis Hastert (R-Ill.) and Minority Leader Richard Gephardt (D-Mo.).

On Tuesday, Bush asked Daschle to speed up the judicial nomination process, but the Majority Leader, insisting there was "no connection" between appropriations and nominations, refused to yield.

Nickles said he expects Bush will get involved in the issue, probably sometime early next year if the war on terrorism begins to cool off a bit and Republicans still feel nominations are moving slowly.

"I think he can turn the heat up at some appropriate time in the future," Nickles said.

"It's a cease-fire for the time being based on priorities," said Craig, who added that the judicial battle would resume early next year. "Look for it on the other side of Christmas."

Still, the temporary cease-fire hasn't soothed the tempers riled by the judicial nomination process. The rhetoric continues to become less partisan and more personal, with Republican vitriol toward Leahy growing by the day.

Launching the appropriation blockade three weeks ago, Republicans chose to begin the effort by blocking foreign operations, which also happens to be the bill that Leahy oversees.

Sen. Orrin Hatch (R-Utah), ranking Member on Judiciary, told reporters that the Vermont lawmaker was acting as a one-man obstacle on the issue.

"It comes down to whether Leahy wants to do it or not. It comes down to one person," said Hatch, who used to boast of his across-the-aisle friendship with Leahy.

Hatch also accused Leahy of "slow-walking" the nomination of U.S. District Judge Charles Pickering Sr., a nominee to the Fifth Circuit Court of Appeals. He charged Leahy caved in to pressure from liberal groups who are now lining up against Pickering's nomination.

In the past week, a handful of liberal groups, from the Congressional Black Caucus to the Alliance for Justice, have begun to attack Republicans for trying to speed nominees through the process, particularly Pickering.

In going after Pickering, the left-leaning organizations have chosen a target interesting both personally and politically: He's the father of Rep. Chip Pickering Jr. (R-Miss.) and a close friend of Lott's.

The CBC cited a paper Pickering Sr. wrote during law school that outlined constitutional ways to impose criminal penalties for interracial marriage.

Rep. Pickering said the groups' accusations against his father "raises stereotypical questions" about older Southern men who are religiously active.

Judiciary Democrats have asked Pickering Sr. to provide hundreds of unpublished opinions he has written for the District Court of the Southern District of Mississippi, and GOP aides said Democrats have hinted that they may want to hold another hearing on Pickering.

In the big picture, however, Democrats contend that they should be graded by the number of judges confirmed by year's end.

By the end of this week 12 nominees will have been confirmed, and 11 more will have had a hearing and be awaiting committee action. Of those 11, only Pickering and one or two other judges appear to have any problems.

If adjournment doesn't come for another month, Judiciary is likely to hold another hearing or two, setting up the likelihood that at least 20 judicial nominees will be confirmed in what has been a very turbulent political year.

That would be about average for the first year of a presidency, according to Democrats.

Even Craig admitted that between 20 and 30 nominees confirmed would "come closer" to where Republicans wanted to be at the end of this year.

Susan Crabtree and John Bresnahan contributed to this report.