Cease-Fire Over Federal Judges

But the war for the soul of the judiciary continues

Despite a truce called in May, which led to the confirmation of five controversial judicial nominees, the struggle between Democrats and Republicans over the philosophical direction of the federal judiciary has not abated. The fight centers on President George W. Bush’s commitment to filling vacant federal judgeships with conservatives whom Democrats perceive as being at the far right of mainstream judicial thought.

Civil rights groups and Democratic senators have been working to prevent an ideological right turn among federal judges, who are appointed to life terms and have the power to roll back laws ensuring civil rights, reproductive choice, workplace safety, clean air, and privacy.

Bush’s renomination of several conservatives to the U.S. Court of Appeals in his second term has spurred the latest round of opposition from Senate Democrats. Using the filibuster, or extended debate, Democrats successfully blocked the full Senate from voting on the confirmation of the nominees. Ending a filibuster requires at least 60 votes for cloture — the closing of debate. Although they hold only 44 seats in the Senate, Democrats have been able to maintain their filibusters.

In May, Senate Majority Leader Bill Frist (R-Tenn.) attempted to circumvent the regular Senate rule-making process to break the Democratic filibuster. Frist proposed a move that would end the judicial debate with a simple majority of 51 votes.

Democrats called Frist’s maneuver the Nuclear Option. If he succeeded, they threatened to stop the Senate from conducting any further business. With Frist fully intent to carry out his plan, the prospect of a Senate shutdown loomed.

A last-minute compromise struck by a bipartisan group of 14 moderates averted the Nuclear Option and preserved the right to filibuster. But it also cleared three of Bush’s most conservative judicial nominees: Priscilla Richman Owen, Janice Rogers Brown, and William H. Pryor. Nominees David W. McKeague and Richard A. Griffin have since also been confirmed.

Brown, an African American, is considered the most conservative of Bush’s nominees by civil rights groups. They fear she will attempt to turn the clock back on affirmative action and laws against age discrimination, housing discrimination, and corporate abuse. Owen tried to rewrite Texas law to create higher barriers for women seeking legal abortions, and Pryor has called for the repeal or weakening of major provisions of the Voting Rights Act of 1965.

Between 1995 and 2000, the Senate Judiciary chair blocked the confirmation vote of more than 60 of former President Bill Clinton’s judicial nominees. By contrast, the Senate confirmed 204, or 95%, of Bush’s nominees for judgeships in his first term. Only 15, or 7.4%, of those judges were black.

The tenuous compromise could fall apart during future battles to confirm nominees for the Supreme Court. In addition to replacing Chief Justice William Rehnquist, who is afflicted with thyroid cancer, Bush may name one or two justices to the court. All of the sitting justices except Clarence Thomas, 57, are over the age of 65.

Rights groups fear that Bush will make good on his promise to appoint judges to the Supreme Court who are

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