Republicans Stoke an Old Fire: Judicial Nominations

The New York Times
Republicans Stoke an Old Fire: Judicial Nominations
By SHERYL GAY STOLBERG

WASHINGTON, May 7 — Republicans are itching for a good election-year fight. Now they are about to get one: a reprise of last year's Senate showdown over judges.

It has been a year since a bipartisan group of 14 senators, the Gang of 14, reached a compromise that smoothed the way for confirmation of President Bush's judicial nominees, including two Supreme Court justices. Conservatives, eager to stir some enthusiasm among their base in an otherwise gloomy election year, have spent months prodding the Senate majority leader, Bill Frist, to take up candidates left out of that deal.

Mr. Frist, of Tennessee, is doing just that. On Tuesday, the Senate Judiciary Committee will hold a hearing on the confirmation of Brett M. Kavanaugh, a White House aide, whose nomination to a federal appeals court has been stalled for three years. Mr. Frist has promised a vote on Mr. Kavanaugh this month. Conservatives are also pushing for a vote on an even more contentious nominee, Judge Terrence W. Boyle, a longtime federal district judge in North Carolina.

With Democrats promising to question Mr. Kavanaugh extensively and threatening to block Judge Boyle by filibuster, Republicans say they could not be happier.

"A good fight on judges does nothing but energize our base," said Senator John Thune, Republican of South Dakota, who made judicial nominations a theme of his 2004 campaign against Tom Daschle, the former Democratic leader. "Right now our folks are feeling a little flat. They need a reason to get engaged, and fights over judges will do that."

Another conservative Republican, Senator John Cornyn of Texas, said: "I think this is excellent timing. From a political standpoint, when we talk about judges, we win."

Conservative commentators and advocates have spent months arguing that very point. Sean Rushton, executive director of the Committee for Justice, which advocates for the confirmation of Mr. Bush's judicial nominees, said his group and other conservative organizations had been pushing Mr. Frist to reopen the issue since Justice Samuel A. Alito Jr. was confirmed to the Supreme Court in January.

With Republicans divided over issues like immigration and federal spending, Mr. Rushton said a revival of the long-running clash over judges could provide a unifying theme. It could swing independent votes, he said, in the close-fought re-election campaigns of Republicans like Senators Rick Santorum of Pennsylvania and Mike DeWine of Ohio, and in races like the one in Michigan, where Republicans are trying to unseat a Democratic incumbent, Senator Debbie Stabenow.

"I would argue that it's more than a base issue," Mr. Rushton said. "It's an issue that reminds people that while they may not love Republicans, they can't trust Democrats."

Some say the topic of judges could help Mr. Bush as well. Last month, Rich Lowry, an editor of National Review, listed seven ways the president could revive his flagging second term. Fifth on the list: "Push for the confirmation of his circuit judges that are pending. Talk about them by name. The G.O.P. wins judiciary fights."

Conservative talk-show hosts, including Rush Limbaugh, have picked up the theme, as has the editorial page of The Wall Street Journal, a reliable barometer of conservative sentiment.

"A filibuster fight," The Journal said in an editorial on Thursday, "would be exactly the sort of political battle Republicans need to energize conservative voters after their recent months of despond."

The central question, beyond whether the nominees are confirmed, is whether Democrats should be permitted to continue using the filibuster to block judicial candidates. Democrats cast the debate as one of protecting minority rights. But if Democrats try a filibuster, Republicans, led by Mr. Frist, have promised to invoke the so-called nuclear option, a rules change that would permanently ban judicial filibusters in the Senate.

Last year's agreement averted the nuclear option showdown when the 14 senators — seven Democrats and seven Republicans — agreed that filibusters against judges were warranted only in "extraordinary circumstances." The group plans to meet Tuesday to discuss the Kavanaugh nomination.

If there is a filibuster, Judge Boyle, who has been nominated to an appeals court position, is a more likely target. The judge arouses the ire of minority groups and many Democrats, who say his rulings on civil rights and disability cases have repeatedly been overturned.

Complicating his case are accusations of conflict of interest published recently in the online magazine Salon, which reported that Judge Boyle, 60, had decided cases in which he had had a financial interest.

The Democratic leader, Senator Harry Reid of Nevada, vowed last week to filibuster Judge Boyle if the nomination came up for a vote. The chairman of the Senate Judiciary Committee, Senator Arlen Specter, Republican of Pennsylvania, said in an interview on Sunday that he was investigating the accusation.

"That's a disqualifier if it's true," Mr. Specter said.

A filibuster is unlikely against Mr. Kavanaugh, though Democrats say he lacks the judicial credentials to serve on the United States Circuit Court of Appeals for the District of Columbia, the same court that produced Chief Justice John G. Roberts Jr.

At 41, Mr. Kavanaugh is staff secretary to Mr. Bush and a former member of the staff of Kenneth W. Starr, the independent counsel who investigated President Bill Clinton. His résumé clearly rankles Democrats, who regard him as "a political partisan warrior," in the words of Senator Charles E. Schumer, Democrat of New York.

The Judiciary Committee hearing on Tuesday will be Mr. Kavanaugh's second. After his first hearing, in April 2004, Democrats complained that he had been evasive.

Last week, the seven Democrats in the Gang of 14 urged Mr. Specter to hold a second hearing. In agreeing to do so, Mr. Specter aroused the ire of conservatives who simply wanted the Senate to vote.

"That's why my job is so difficult," Mr. Specter said, "to avoid the fight, because there are so many people hankering for one."