WASHINGTON – For Democrats, it was a case of letting one judge through and filibustering the other.
On a 52-41 largely partisan vote Tuesday, the Senate confirmed Jeffrey Sutton (search) to the 6th Circuit Appeals Court in Ohio.
Sutton had been under Democratic fire as an extreme conservative who critics say will weaken federal worker protections for the disabled and minorities.
Democrats chose not to filibuster Sutton — in effect raising the bar from 51 to 60 votes to achieve confirmation — but said they will not offer the same reprieve to Priscilla Owen (search), up for a 5th Circuit Appeals Court seat in New Orleans.
"In the case of Judge Owen, we think her record is so egregious that we have no choice but to filibuster and that's what the caucus will do," said Senate Minority Leader Tom Daschle, D-S.D (search).
Owen, described as another extreme conservative who puts her personal opinions above the law, becomes the second Bush nominee to face a filibuster.
The first Bush nominee to face a filibuster was and remains Miguel Estrada (search), whose nomination to the D.C. Appeals Court has been stalled for months.
Democrats say Judge Charles Pickering (search), another Bush judicial nominee, will also face a filibuster if his name hits the Senate floor for confirmation later this year.
All three — Estrada, Owen and Pickering — were first nominated and blocked when Democrats controlled the Senate majority. Once the GOP regained Senate control, President Bush renominated them and the newly Republican-controlled Senate Judiciary Committee approved them.
Daschle said Democrats are using the filibuster sparingly and claim that the Sutton nomination could have been blocked but was not.
"If you look at the votes, we probably could have sustained a filibuster on Mr. Sutton. But we want to be selective. We want to be careful, we don't want to abuse the practice of filibusters," Daschle said.
Outraged Republicans say it is an abuse to filibuster judicial nominees in the first place, calling it unprecedented and a personal attack on the president.
"We're not going to accept this elevation from a majority vote on advice and consent on the Constitution to a 60-vote standard, it's unacceptable and we're going to persist and we're going to continue to fight," said Senate Majority Leader Bill Frist, R-Tenn.
"It seems as though our colleagues just seem to hate President Bush and they are not being fair to him," said Senate Judiciary Committee chairman Sen. Orrin Hatch of Utah.
Fox News' Carl Cameron contributed to this report.