STEVE INSKEEP, host:
Social conservatives are pressing again for one of their highest goals, the goal of remaking American courts. They're urging both the White House and the Senate Republican leadership to move on some controversial and long-stalled nominees. Here's NPR Legal Affairs Correspondent Nina Totenberg.
NINA TOTENBERG reporting:
The bizarre world of judicial politics is played out in the visible pressure politics from the grassroots, and below the radar screen Senate and White House politics. To date, the Bush administration has played the game very successfully. Republican appointees now are the majority on nine of the 12 federal appeals courts. The president has won confirmation of almost 250 judges. That's a little less than a third of the lifetime seats on a federal bench.
Ironically, more than a hundred of those judges were confirmed when the Democrats controlled the Senate for 17 months early in the Bush administration. By comparison, in the last 18 months, the GOP-controlled Senate has confirmed only 44 judges.
But scoring judicial confirmations can be misleading. At the beginning of the Bush administration there were more than 80 judicial vacancies, and now there are slightly more than half that number, a rate so low that it's generally considered full occupancy. Only half of the vacancies even have nominees, so there's simply less work for the Senate to do.
Conservatives activists, however, accuse both the White House and the Senate Republican leadership of dropping the ball on judges. Manny Miranda is Chairman of the Third Branch Conference, a coalition of social conservative leaders.
Mr. MANUEL MIRANDA (Chairman, Third Branch Conference): The White House and the Justice Department are missing in action, and the staff hasn't been told to kick in. So that's why those of us on the outside are trying to press them to do something more.
TOTENBERG: Miranda notes that several Bush appellate court nominees have been stalled in the Senate, literally for years. The appeals court nomination of Williams Haynes, the general counsel for the Defense Department, has been blocked so far because GOP Senators like South Carolina's Lindsey Graham and Arizona senator John McCain have questions about his role in memos authorizing torture and other controversial policies.
Senator Arlen Specter, the Chairman of the Judiciary Committee, has been willing to hold a second hearing on the nomination, but to date, the Bush administration has refused to allow its members to give detailed answers to Senate questions about the torture memos and other policies.
The nomination of Federal District Judge Terrence Boyle to a federal appeals court was stalled initially because of his high reversal rate on both civil rights and law enforcement questions, rulings that earned him opposition from both civil rights and police groups. But more recently, he's come under fire for issuing rulings in cases involving companies in which he held a financial interest.
William Myers nomination to the Ninth Circuit Court of Appeals in the west has been held up for years because of opposition from environmental groups and Native American tribes. They charge that when Myers, a former lobbyist from mining and cattle interests, took a top position in the Bush Interior Department, he worked to overturn regulations involving his old clients, in violation of conflict of interest rules.
All three of these nominations were left out of the deal brokered by the so- called Gang of 14 Senators, the deal that ended most Democratic threats of a judicial filibuster, and also ended the GOP threat of the so-called nuclear option to change the Senate rules and end judicial filibusters altogether.
More recently, there's a new controversial nominee: Michael Wallace, named by President Bush to an appeals court seat on the 11th Circuit in the deep south. Wallace was unanimously rated unqualified by the American Bar Association, the first time that's happened in 25 years, and so far, he's not had a Judiciary Committee hearing.
Conservatives like Manny Miranda are agitating for confirmation of all four of these controversial nominees. They're suspicious of the good intentions of White House counsel Harriet Miers, whose Supreme Court nomination they effectively killed, and even meetings with Miers and Bush political amanuenses Karl Rove do not satisfy them. Again, Manny Miranda:
Mr. MIRANDA: We kind of look at these meetings as happy gas meetings. You know, they just sort of give us happy gas and expect us to go away happy, and it just doesn't work that way anymore.
TOTENBERG: And so conservatives are applying pressure where they can, in the Senate. They've called on the leadership to move the stalled nominees, and have targeted South Carolina senator Lindsey Graham, a member of the Judiciary Committee, with a letter-writing campaign and threats of primary opposition when he runs for reelection.
But the fact is that, in the Senate, most Republicans don't want to vote on these nominees because there's significant opposition from Republicans themselves. Said one GOP member of the Gang of 14: If these nominations were to come up for a vote, they might well lose, and there would be a lot of Republican blood on the floor afterwards.
Indeed, even some of the initial support that the Defense Department's William Haynes once had, has now evaporated. But conservative groups look at the upcoming election and see the likelihood that the GOP will lose seats in the Senate. Manny Miranda has no patience with Senate Republicans.
Mr. MIRANDA: They're squeamish as it is on the issue of judges. Some of them would rather do the clean sewer act rather than vote on a judge.
TOTENBERG: Democrats look at the judge picture and marvel. Ron Klain, who was in charge of judicial selection for President Clinton in the first Clinton term, concedes that President Bush has been far more successful at confirming judges who reflect the administration's perspective.
Mr. RONALD KLAIN (Former Vice Presidential Chief of Staff for Al Gore): They've been more willing to pick controversial nominees. They've been more successful in getting those nominees confirmed.
TOTENBERG: Of course, President Clinton faced a GOP-controlled Senate in six of his eight years. Moreover, in those days, the Senate had more blocking power. When President Bush was elected and the GOP subsequently took over Senate control, Republicans abolished many of the rules that allowed GOP Senators to block Clinton nominees. Thus Ron Klain contends that, even though Clinton's overall judicial confirmation numbers paralleled President Bush's, that does not tell the whole story.
Mr. KLAIN: Often, President Clinton couldn't get his first or second or third choice confirmed by the Senate - couldn't even get that person a hearing in the Senate. So just looking at the end result that, in fact, eventually, someone got in that seat, doesn't really measure the level of difficulty that President Clinton faced in the confirmation process during his eight years in the White House.
TOTENBERG: Conservative activist Manny Miranda sees judicial confirmations as a good election issue for Republicans, a way to activate the base. And he contends that for moderate Republicans it's an issue where they can win conservative support without losing moderates.
Mr. MIRANDA: It's a clean issue. It doesn't scare people. It doesn't scare the horses. These guys don't have to put themselves out as hardcore conservatives on social issues, but they are solid on judges and that, for both the left and the right, is really understood as a euphemism or a surrogate of the larger social issues.
TOTENBERG: Then, too, there's the fact that a half dozen Senate Republicans have plans to run for president. And as Democrat Ron Klain observes:
Mr. KLAIN: I don't think you can underestimate the extent to which presidential politics may override Senatorial politics in driving how this plays out the next couple of years.
TOTENBERG: In the end, though, it's hard to beat the inexorable forces that come into play in the waning years of any administration. Ron Klain.
Mr. KLAIN: The most controversial nominees do kind of tend to stack up a bit. And so what's left in the ammo pile, as you get nearer to the end, usually are the very hardest ones to get confirmed.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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