April 8, 2002
More Battles Loom Over Bush's Nominees for Judgeships
By NEIL A. LEWIS
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| Agence France-Presse |
| Alberto R. Gonzales, the White House counsel, and former judge. |
WASHINGTON, April 6 — Neither the White House nor Senate Democrats are giving any quarter in their battle over what kind of judges should sit on the federal bench, and officials on both sides say they expect more confirmation fights in the months ahead.
The first confrontation could be over any of several conservative nominees. One possibility, both sides say, is President Bush's declared choice of Priscilla Owen, a conservative justice on the Texas Supreme Court, for a federal appeals court post. Justice Owen is an opponent of abortion rights for minors without their parents' permission.
The Democrats on the Senate Judiciary Committee banded together last month to defeat the nomination of Charles W. Pickering Sr. of Mississippi to a seat on the federal appeals court based in New Orleans, provoking denunciations from Republicans.
Some Democrats were blunt about what they hoped to accomplish. Senator Charles E. Schumer of New York said that in opposing the Pickering nomination they were sending a message to the White House that Mr. Bush should stop trying to stack the courts with conservatives.
"The bottom line is that the administration has made ideology a major factor in their selection of judges," Senator Schumer said in an interview. "I think it's fine that ideology is being debated more openly now."
But he added that the Judiciary Committee would not accept the administration's judicial nominees unless Mr. Bush broadened their ideological range.
The chief lawyer in the White House, however, rejected the idea that Mr. Bush would change his approach to choosing judicial nominees.
"The president has made very clear he has definite ideas about the kind of people he wants to fill the judiciary," Alberto R. Gonzales, the White House counsel, said in an interview this week. "The intention here is to keep sending up people like the ones we have sent up who we believe are qualified and in the mainstream."
On a recent campaign swing through the South, President Bush said he wanted a Republican-controlled Senate so he could put conservatives on the bench.
Mr. Gonzales said the president was naming lawyers to the bench who are chosen for competence, character and a judicial philosophy that respects precedent and believes in judicial restraint.
But Mr. Bush's use of the word conservatives in his campaign appearances was unusually direct.
Republicans have generally shown themselves willing to take casualties in their efforts to shape the federal bench to their liking. Even though Mr. Bush suffered a defeat with the Pickering nomination, the Republican Party is trying to extract some political advantage from the experience.
Mr. Bush has tried to use the issue against Senator Max Cleland of Georgia, who is running for re-election, and a Republican strategist said he expected the Pickering issue to play a role in several races in the South. One Republican Senate candidate, Lamar Alexander of Tennessee, has even broadcast a television advertisement arguing that the treatment of Judge Pickering was unfair to the South.
Democrats on the Judiciary Committee, which holds hearings on all judicial nominees, have also tried to send their message by arranging the order in which they will consider Mr. Bush's nominees, delaying votes on those they consider most conservative. To that end, the Democrats, who control the committee, are generally planning to schedule hearings and votes on those Bush nominees they consider more acceptable, such as James Howard of New Hampshire, who has been nominated for a seat on the United States Court of Appeals for the First Circuit, in Boston.
Mr. Howard is considered a moderate and a relatively noncontroversial candidate, Democratic staff aides said. Others whom committee members consider less ideological, and who thus may get early consideration, include Julia Smith Gibbons and John M. Rogers, both nominated for seats on the United States Court of Appeals for the Sixth Circuit, in Cincinnati.
Eventually, the committee will run out of such candidates and will have to deal with some of the more outspokenly conservative nominees.
The committee may soon take up Mr. Bush's nomination of Justice Owen of the Texas Supreme Court to a seat on the United States Court of Appeals for the Fifth Circuit, in New Orleans, the same court to which Mr. Pickering was named. Justice Owen is generally viewed as a member of the conservative wing of a conservative State Supreme Court.
In addition to objecting to her views on abortion rights, liberal advocacy groups have raised questions about the relationship of Justice Owen's opinions to donations she received from Texas corporations, including Enron
Justice Owen, who was elected in 1994 with the help of an $8,600 donation from Enron, later wrote a majority opinion that reversed a lower court order, saving the company about $225,000 in taxes.
Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee, recently sent a series of questions to the White House asking for comment on the issue of any relationship between the donations and her rulings.
Mr. Gonzales said that he had examined the issue and found nothing improper on Justice Owen's part. He said he would soon write to Mr. Leahy outlining his position.
"Based on our review she's superbly qualified to serve on the Fifth Circuit," he said. "She's extremely bright, extraordinarily dedicated and very principled."
But opponents of Justice Owen are certain to recall a dispute that arose in 2000, when Mr. Gonzales was a fellow justice on the Texas court and Justice Owen was one of three court members who wrote dissents in a case involving a new Texas law regarding parental notification of abortions among minors. At the time, Mr. Gonzales suggested that the narrow reading of the law by the dissenters was "an unconscionable act of judicial activism."
Anne Womack, a spokesman for Mr. Gonzales, minimized the significance of the disagreement. "Judge Gonzales's opinion and Justice Owen's dissent reflect an honest and legitimate difference of how to interpret a difficult and vague statute," Ms. Womack said.
Justice Owen's nomination is likely to bring the abortion debate into play. Kate Michelman, the president of the National Abortion Rights Action League, said that abortion rights groups would strongly oppose her. "We regard her as someone who exemplifies the most extreme hostility to reproductive rights of any of the nominees that President Bush has named," Ms. Michelman said.
Other Bush nominees who could become the subject of sharp battles include Miguel Estrada, a strong conservative who has been nominated to the United States Court of Appeals for the District of Columbia Circuit, and D. Brooks Smith, nominated for the United States Court of Appeals for the Third Circuit, in Philadelphia.
Mr. Leahy has promised hearings this year to Ms. Owen, Mr. Estrada and Prof. Michael W. McConnell of the University of Utah, nominated to a seat on the United States Court of Appeals for the 10th Circuit, in Denver. Professor McConnell is considered the least likely to engender opposition of the three because of support for him among academics across the ideological spectrum.
Copyright 2002 The New York Times Company
