The GOP's Judiciary Showdown

At least two debates this coming week over controversial nominees to the lower courts will preview what's to come. A full Senate vote on the nomination of Jeffrey Sutton — whose states' rights advocacy has helped limit the scope of disability, age and race discrimination statutes — to the 6th Circuit Court of Appeals is expected Tuesday. Then Thursday, the Judiciary Committee is scheduled to vote on Carolyn Kuhl, whom George Bush wants to seat on the appellate court in California. As a Reagan administration lawyer, Kuhl argued hard for tax-exempt status for the racially discriminatory Bob Jones University, and for the reversal of Roe v. Wade. Sutton and Kuhl have run up against heavy Democratic opposition, and the Dems have filibustered another appellate nominee, Miguel Estrada, for nearly two months, blocking an up-or-down vote.

But stay tuned. "These are just the opening salvos of what will be a colossal conflict," said Ross Baker, a presidential historian at Rutgers. Both Chief Justice William Rehnquist, 78, and Sandra Day O'Connor, 73, have told friends they'd like to step down. And both know that if they want George Bush to name their successor, they should leave this year. In 2004, with an election in the offing, confirmation of a replacement will be all but impossible.

Bush appears to have focused on the judiciary — with lifetime appointments that will far outlast him — as a top domestic priority far more intently than did the Clinton White House. To that end, the president has put up one highly conservative nominee after another, even recycling two that the Judiciary Committee, under Democratic control last year, rejected: Mississippi's Charles Pickering, whose civil rights stances were questioned, and Priscilla Owen of Texas. Democrats are counting votes to see if they have the 41 needed to filibuster Owen, whose rulings they view as being anti-worker, anti-abortion and to the right of even her conservative colleagues on the Texas Supreme Court; Republicans may try to force the issue next week. But Democrats have held strong through four GOP attempts to break their filibuster of Estrada, with accompanying charges of being anti-Hispanic, on the grounds that he?s refused to answer their questions or turn over legal memos he wrote.

For an administration bent on keeping its conservative base happy, though, tacking way right on judicial nominees and clashing with the opposition has no real downside. Proof that Bush isn?t changing course: his nomination earlier this month of Alabama Attorney General William Pryor to an appellate court seat. Pryor, besides being vigorously anti-abortion and plenty willing to smudge the line separating church and state, last year criticized a Supreme Court ruling that state corrections officers could be sued for tying prisoners to hitching posts for long periods because they should have known that it was cruel and unusual punishment. Pryor is close to top Bush adviser Karl Rove.

Even a Republican, Sen. Arlen Specter of Pennsylvania, has asked for more time to study one of Bush's nominees, J. Leon Holmes of Arkansas. Holmes, a past president of Arkansas Right to Life, has asserted that "conceptions from rape occur with the same frequency as snow in Miami." In fact, according to a study published in the American Journal of Preventative Medicine, about 25,000 pregnancies each year are the result of rape.

Former White House Counsel C. Boyden Gray, who heads a group that's run ads supporting Bush?s nominees (with fundraising help from Bush's father), complains that the Democrats have taken obstructionism to new lows. "If 51 senators want to vote down an Estrada or Sutton or whoever, they're entitled to do that," he said. "But when Democrats say you need 60 votes? — which is what's required to end a filibuster — that's beyond fair play."

Democrats, for their part, say the filibuster is practically the only weapon they have left in the face of what they assert is a brazen attempt to stuff the nation's federal courts with highly ideological lawyers. Since most cases, while precedent-setting, never make it to the Supreme Court, they seem to have decided it's worth the fight even in the lower courts. "Never in recent memory has their been such an affront to the balance of the judiciary," said Sen. Edward Kennedy of Massachusetts, a Democratic member of the judiciary panel, where inter-party relations have sunk to a new low. "This is really an attempt to roll back any progress toward equality for all Americans."

In reality, though, the filibuster is akin to a weapon of mass destruction; it's not something to be used often. That's why most of Bush's picks, controversial or not, have been getting through, and the number of nominees confirmed is about the same as in the first two years of the Reagan and Clinton administrations.

But there's no doubt that with Estrada — and possibly Owen — Democrats are sharpening their skills with that weapon. And when it's a high court seat that's at stake, they hope to be battle-ready.