Bush nominees fuel a partisan firestorm

WASHINGTON -- Combatants in the judicial wars agree on one thing: Their ferocious battles haven't dissuaded President Bush from continuing to select conservative nominees.

Of course, they dispute what that means.

For liberals, the Bush administration is seeking a right-wing takeover of the judiciary, one that would cut back abortion rights, civil rights and the separation of church and state.

To Bush's conservative backers, the president is seeking to rein in a judiciary that declares rights not found in the Constitution, such as the recent Supreme Court rulings favoring affirmative action and gay rights.

At the White House, meanwhile, aides said that Bush does not base his judicial selections on politics and that the nominees reflect the mainstream of American law and values.

"The president's nominees are chosen for their character, experience and intellect," said administration spokeswoman Ashley Snee. "And each follows the president's philosophy that judges should follow the law and not make the law."

Two nominees for federal circuit courts have inspired Democratic filibusters, including Texas Supreme Court Justice Priscilla Owen. Critics also have protested selections for their criticism of a variety of Supreme Court legal precedents, most notably the Roe vs. Wade 1973 ruling that struck down anti-abortion laws.

These kinds of nominees, however, are important to the social conservatives who make up a large chunk of Bush's support, political analysts said.

They added that contentious nominations could help Republican efforts to change filibuster rules that currently give a single senator the right to block action unless 60 or more colleagues force a vote. That debate could be important if conservatives and liberals face the ultimate politico-judicial battle, filling a vacancy on the U.S. Supreme Court.

"For Bush, in a lot of ways, these are no-lose propositions," said Norman Ornstein, resident scholar at the Washington-based American Enterprise Institute. "You gain a lot of credit with the right on these nominations."

Now that the Supreme Court has left for the summer without announcing any retirements, the debate remains centered on federal appellate courts. One of the latest controversies involves Alabama Attorney General Bill Pryor, whose nomination to the 11th U.S. Circuit Court of Appeals illustrates the Mars-and-Venus nature of these judicial battles.

During his hearing before the Senate Judiciary Committee, Pryor declined to take back previous comments describing Roe vs. Wade as "the worst abomination of constitutional law in our history," one that "has led to the slaughter of millions of innocent unborn children."

The Alliance For Justice, which has opposed other Bush nominees, cited Pryor's objections to reproductive rights, environmental protections, separation of church and state, gay and lesbian rights, and protections for those accused of crimes.

"Pryor is an ideological zealot who has devoted his entire legal career to attempting to dismantle legal and constitutional protections for American rights and liberties," the organization said.

Many conservatives, meanwhile, praised Pryor's testimony. National Review, the magazine founded by William F. Buckley Jr., said the Alabama attorney general "ably defended his public statements on issues ranging from abortion to federalism, church-state jurisprudence and criminal rights."

His Senate hearing "so delighted conservatives that it should be rerun on pay-TV to raise some campaign cash for the president," the magazine editorialized.

At the White House, Snee said of Pryor: "Like all the president's nominees, he's highly qualified and well respected in his community."

Democrats said previous presidents have discussed difficult nominations with senators and occasionally withheld some in the face of opposition. These critics said Bush provokes disputes by not consulting with the Senate on hot-button nominees.

"Recent nominations, like the Pryor nomination, indicate that the president is still determined to make ideological choices for circuit courts," said David Carle, a spokesman for Sen. Patrick Leahy of Vermont, top Democrat on the Judiciary Committee.

Pryor is a potential candidate for a filibuster, according to several people involved in the process. So are others, such as 9th U.S. Circuit Court of Appeals Carolyn Kuhl of California whom the Alliance for Justice called a "central figure in the Reagan administration's assault on the rights of women, people of color, workers and environmentalists."

Critics also have balked at reports that Bush plans to nominate Brett Kavanaugh, who worked for independent counsel Kenneth Starr during his investigations of the Clinton administration.

John Nowacki, director of legal policy with The Free Congress Foundation, noted that Bush's nominees would win confirmation in the Republican-run Senate if votes were allowed to take place.

"There's no reason for him to suddenly depart from making the nominations he said he would make," Nowacki said. "The question is whether they're going to be treated fairly or not."

Others said that Democrats have, to date, filibustered only a pair of Bush nominees and that this administration has a much higher confirmation rate than the Clinton White House enjoyed under a Republican Senate.

The Democrats have decided to contest only "the most extreme of the extreme," said Ralph Neas, president of the liberal People for the American Way.

Neas said these nominations are the continuation of efforts begun under President Ronald Reagan during the 1980s, and, if anything, Bush's nominees are even more conservative than Reagan's. He said that, for more modern conservatives, judicial selections are nearly as important as tax cuts.

"The Bush administration has made as one of its top two priorities packing the federal judiciary with extreme right wing judges who would turn back the clock," he said.

Nan Aron, who has fought Bush nominations as president of the Alliance For Justice, said, "if anything, they're getting bolder and bolder with their judicial selections."

"Judges have served as a very reliable tool to placate the extreme wing of the base," Aron added.

Conservatives pointed out that liberals also have an intense interest in the judiciary, and, by resisting Bush's judicial picks, the Democrats also are playing to their political base.

Charles Cooper, a Washington attorney who helped select judges during the Reagan administration, said there is no need for Bush to back down in the face of such opposition.

"All the available evidence is that the president is committed to nominating men and women to the federal bench who take the view of a restrained judiciary," Cooper said. "He's been very consistent on that."

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