Published June 03, 2004
WASHINGTON – Conservatives are grumbling that President Bush let Senate Democrats snooker him when he agreed to quit using recess appointments (search) to install his most contentious nominees on federal appeals courts while Congress is out of town.
The deal guaranteed Bush that 25 of his less disputed nominees will be seated by the July Fourth holiday. The Senate, without Democratic protest, already has confirmed four of them since the accord was announced two weeks ago.
"In the end, it was not that much of a deal," said Sean Rushton of the Committee for Justice (search), a conservative group that was set up solely to help Bush get his nominees on the courts.
Liberals are happy because they now do not have to worry about nominees they dislike the most getting one- or two-year appointments to federal trial or appeals courts this year.
"The Bush administration's promise to end recess appointments through the end of this term ensures that the most extreme nominees will not be confirmed," said Nan Aron, president of the liberal Alliance for Justice (search).
Republican senators tried to put on the best face they could, but some could not hide their dismay at the deal.
"It was the best we could do at the time, under the circumstances," said Sen. Jon Kyl, R-Ariz. "I'm not happy with it, no, but I'm not going to criticize it."
Democrats and Republicans for years have fought over judicial nominees.
Stymied in getting some of his choices past Democratic opponents, Bush bypassed the Senate in January and February and gave two nominees, Mississippi federal judge Charles Pickering (search) and Alabama Attorney General William Pryor (search), temporary appointments on federal appeals courts.
Democrats had held up Pickering since 2001 and Pryor since 2003. Furious that Bush used his appointment power despite their objections, Democrats retaliated by refusing to let the Senate confirm any more judges.
To many conservatives, the recent deal means that some jurists they view as ideal candidates for the next vacancy on a closely divided Supreme Court may never get put on a path to reaching it, particularly if Bush is not re-elected in November.
Most of the 25 nominees joining the bench eventually would have been confirmed, and the GOP now has lost time they could have been using to push the stalled picks, Republicans said.
Democrats "get a public relations boost for doing something that is standard operating procedure," Rushton said. "The president has to repudiate his use of a legitimate power and we've wasted three or four months to boot."
Conservatives say Republicans now will not be able to use their "Democrats are obstructing Bush's judicial nominees" line.
"This deal, on its face, appears to do nothing but give (Senate Democratic Leader Tom) Daschle and his cohorts fodder to continue to deflect attention from the unfair treatment of all of the president's judicial nominees," said Jeffrey Mazzella, executive director of the Center for Individual Freedom.
Bush has filled 177 federal district and appeals court vacancies with his nominees and that number will swell to 198 over the next five weeks.
For comparison, in their first — and for some only — terms, former presidents Jimmy Carter had 262 nominees confirmed, Ronald Reagan had 163, George H.W. Bush had 191 and Bill Clinton had 200, according to a 2003 report from the Congressional Research Service (search).
Kyl said GOP senators won't let the issue go away as the election approaches.
"We're still are going to have seven, eight circuit judge nominees who are being filibustered, who have been languishing for a long, long time," said Kyl. "We will have plenty of obstructionism to talk about, I guarantee it."