Prospect dim for conservative judicial nominees

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Appeals court openings
At immediate risk for Bush and conservatives are the 14 vacancies now on the federal appeals courts.

To this point in his presidency, Bush has appointed and seen confirmed by the Senate a total of 254 federal judges, including two Supreme Court justices and 50 appeals court judges.

The appeals court judges are crucial since most legal cases never make it to the Supreme Court and the federal appeals court is usually the final arbiter.

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Carter Snead, a Federalist Society member who is a law professor at Notre Dame University and former counsel to Bush’s Council on Bioethics, said, “The entire circus of judicial confirmation politics is reducible to the question of abortion. If it is evident that a nominee is pro-life or opposed to abortion, I think they are not confirmable at this point. If they are opaque or stealthy, I think there will an effort to figure out where they are coming from and they would have a chance to be confirmed.”

“Now with Schumer and Leahy in charge of the Judiciary Committee, abortion is their litmus test and they will certainly on the lower court judges shut down someone like Bill Pryor who said during his confirmation hearing that he opposed abortion personally.”

A Republican member of the Judiciary Committee, Sen. John Cornyn of Texas, took a bit more sanguine view.

“It’ll be much more difficult” to get conservative nominees confirmed, he said this week, “but Sen. Leahy is fond of reminding us of how many judges were confirmed and given an up-or-down vote during his tenure as chairman. I would expect him to be consistent with that practice.”

During Leahy’s stint as chairman form the summer of 2001 until the end of 2002, the panel approved 17 appeals court nominees, two more than the committee has OK’d in the 22 months that Specter has been at the helm.

A new type of nominee?
The reality of a new Democratic controlled Senate, Cornyn said, “may well have an influence on who the nominee is who is chosen by the White House based on how readily they are likely to be considered and confirmed.”

Specter took the longer view of politics in his speech Friday: “There’ll be another election and the voters of South Dakota held Sen. Daschle accountable (in 2004) for his obstructionism. That’s something they (the Democrats) have to keep in mind.”

Daschle lost his re-election bid partly due to his role in blocking Bush judicial nominees in 2002 and 2003.

He added, “If they become obstructionists, they run the risk of paying a price…. We’ve got some cards; we’ve got some aces up our sleeves.”

But one wonders: how engaged is the public in the issue of the people who serve on the appeals courts?

In his answer, Specter reverted again to his concern about the Supreme Court: “The public would care about an eight-person supreme Court. They wouldn’t like that, if there’s political obstinacy, if there’s obstruction.”

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