Cover Story

Obstruction

The war over judges: the soldiers, the terrain, and the enemies

Issue: "Pryor commitment," Sept. 13, 2003

Soldiers in the obstruction war against President Bush's judicial nominations come from among Senate Democrats, liberal interest groups, and sympathetic journalists, and they fight on three distinct fronts:

The regional front. The main weapon here is the blue slip. By tradition, senators' views on nominees who would serve in their state (indicated on blue slips of paper) carry "substantial weight" with the Senate Judiciary Committee's decision to hold hearings. According to the Department of Justice, Democratic senators have returned a negative blue slip, refused to return one at all, or withheld judgment on seven appeals court nominations. Judiciary Committee Chairman Orrin Hatch (R-Utah) has nonetheless held, or announced, hearings on six of these nominations. As a result, at least five are likely filibuster targets (see below).

The propaganda front. How nominees are labeled in news media reports is crucial, and spin experts serve it up in three forms: (1) direct labeling such as "extreme," "out of the mainstream," or "activist"; (2) labeling nominees as members of (or sympathizers with) groups like the Federalist Society, a national organization of conservative and libertarian law students, professors, and judges; and (3) most recently, labeling a nominee as having "deeply held personal beliefs," which gives rise to the claim that a nominee will not be a fair or impartial judge because of these beliefs.

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The national front. The weapon of mass delay in this front is the filibuster. Senate debate on a nomination must end before a vote can occur, and a motion to end debate (or "invoke cloture") requires 60 votes to pass. A filibuster occurs when as few as 41 senators prevent the Senate from voting by defeating a cloture motion. This happened only four times prior to 2003, and three of those nominations were later confirmed. In 2003, 11 cloture motions have failed, with the Senate unable to vote on U.S. Court of Appeals nominees Miguel Estrada (D.C. Circuit), who withdrew rather than fight on, Priscilla Owen (5th Circuit), and William Pryor (11th Circuit). Likely additional filibuster targets include:

9th Circuit nominee Carolyn Kuhl, currently a California state trial court judge. Nominated: June 22, 2001. Hearing: April 1, 2003.

D.C. Circuit nominee Janice Rogers Brown, currently on the California Supreme Court. Nominated: July 25, 2003.

Michigan-based 6th Circuit nominees Henry Saad and Richard Griffin, currently on the state appeals court; David McKeague, currently on the U.S. district court; and Susan Neilson, currently on the state trial court. Judges Saad, McKeague, and Neilson were nominated on Nov. 18, 2001, Judge Griffin on June 26, 2002. Judge Saad received a hearing on July 30, 2003.

5th Circuit nominee Charles Pickering, currently on the U.S. District Court in Mississippi. Nominated: May 25, 2001. Hearings: Oct. 18, 2001; Feb. 7, 2002.

U.S. District Court nominee J. Leon Holmes, currently in private law practice in Arkansas. Nominated: Jan. 29, 2003. Hearing: March 27, 2003.

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