Turmoil Over Court Nominees
Democrats Dispute Weight of Strategies in Leaked Memos
By David Von Drehle
Washington Post Staff Writer
Saturday, January 3, 2004; Page A02
Hatfields and McCoys. Montagues and Capulets. The intractable feudists of lore have nothing on the Republicans and Democrats of the Senate Judiciary Committee.
Like all bitter and seemingly endless vendettas, their fight over a relative handful of senior federal judgeships has gone on so long they cannot even agree when it started. Republicans lean toward 1987, when Democrats torpedoed the Supreme Court nomination of Robert H. Bork; Democrats take it back to 1968 and the ousting of chief justice nominee Abe Fortas.
Each side is certain, however, it was the other's fault.
"The level of rancor and acrimony is at an all-time high," said Nan Aron, president of the Alliance for Justice, a leading critic of Bush nominees to the federal courts.
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No surprise, then, that the two sides disagree about the significance of a sheaf of internal memos<font size=3> downloaded from the committee's unsecured computer server by snooping staffers and leaked to the media. These memos are now the root of an investigation of the leak by the Senate sergeant-at-arms, ethics complaints, a fair amount of hand-wringing and finger-pointing, and things said off-the-record that could not be printed in a family newspaper anyway.
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The memos, apparently written by aides to Sens. Edward M. Kennedy (D-Mass.) and Richard J. Durbin (D-Ill.), sketch the evolution between 2001 and early 2003 of plans to filibuster court nominees perceived as too conservative -- "nazis," in the words of one unidentified Democratic memo writer. At their most pointed, the documents assert that a leading civil rights lawyer urged senators to leave vacancies unfilled on the U.S. Court of Appeals for the 6th Circuit while a particular case was pending.
In April 2002, an unnamed Kennedy staffer advised the senator that Elaine Jones, a veteran litigator at the NAACP Legal Defense and Educational Fund, "would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided."
Whoever leaked the memos underlined this sentence and added a note in the margin: "Talk about political!!" But Democrats on the committee are happy to return fire, noting that when Bill Clinton was president, Senate Republicans blocked all nominees to the same court, <font size=5>perhaps<font size=4> with the same explosive affirmative action cases in mind.
The affirmative action cases were ultimately decided this year by the U.S. Supreme Court, but the feuding parties continue to hamstring the 6th Circuit, which is now operating at barely over half-strength after seven years of partisan stalls and stratagems.
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"Each party ratchets up the politicization of the process," said Peter Berkowitz, a fellow of the Hoover Institution. "There were Republican abuses that are now taken a step farther by the Democrats -- and I expect when we see the next Democratic president, the Republicans will ratchet it up one more step."
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Thus, to a core of Republicans -- including editorial writers and columnists at the Wall Street Journal and Washington Times -- the documents are proof that the opposition has contrived a controversial filibuster of judicial nominees from the raw material of crass politics, driven by the demands of liberal special interest groups.
Democrats, on the other hand, see the memos as evidence of GOP perfidy, no less incriminating than a pillowcase full of silverware in the gloved hands of a burglar.
The story sketched by the leaked memos starts in autumn 2001, not long after the terrorist attacks on the World Trade Center and the Pentagon. Staff members, whose names have been blacked out, use the memos to update their senators on the views of leading liberal civil rights groups -- including the Alliance for Justice, People for the American Way, the NAACP, the Leadership Conference on Civil Rights and several abortion rights groups.
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Not much new there: All of these groups issue news releases and maintain Web sites to publicize their views. "Some of the memos rather state the obvious," said former White House counsel C. Boyden Gray, who co-founded the Committee for Justice to try to overcome Democratic opposition to Bush nominees.
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But the memos do shed light on the tactics and strategies Democrats have chosen to try to block what they say is an effort by Bush to pack the courts with conservative ideologues. And they add weight to charges by Gray and others that key Democrats dug in their heels against Washington lawyer Miguel A. Estrada because they feared that, as a Latino, Estrada would rise quickly and unstoppably to the Supreme Court if he became a judge on the Court of Appeals for the D.C. Circuit.
The first leaked memo is dated Oct. 15, 2001, not long after Democrats briefly won control of the Senate, thanks to the defection of Vermont Sen. James Jeffords (I) from Republican ranks. An unidentified staff member offers advice to Durbin on the opposition among the civil rights groups to the promotion of U.S. District Judge Charles W. Pickering Sr. to the Court of Appeals for the 5th Circuit.
The interest groups were worried that the judge would be swept through on a wave of national unity. "In light of the terrorist attacks," wrote the staffer, "it was their understanding that no controversial judicial nominees would be moved this fall." Three weeks later, apparently the same writer returned to that theme in a memo to Durbin:
"The [civil rights] groups would like to postpone action on [controversial] nominees until next year, when (presumably) the public will be more tolerant of partisan dissent."
At the same time, November 2001, the Durbin aide noted that the liberal groups were particularly worried about Estrada, a Honduran immigrant whose short career had been a rocket ride through the upper reaches of Washington's conservative legal circles. The groups believed that the Bush administration was using Estrada's ethnic identity to bulletproof his judicial ideology -- and they were not sure how to fight back. Estrada was "especially dangerous," the memo writer summed up, "because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment."
A string of memos from 2002 shows advice that Kennedy was getting from his staff. Sen. Patrick J. Leahy (D-Vt.), then chairman of the Judiciary Committee, had agreed to give hearings to Bush's controversial nominees -- a courtesy, he argued, that Republicans had failed to offer Clinton in his second term. The memo writer urged Kennedy to draw Durbin and Sen. Charles E. Schumer (D-N.Y.) into a coalition to press Leahy to stall nominations until after the 2002 election.
After the election, the Democrats were once again in the minority. It was a bitter defeat for the Democrats, who saw Sen. Max Cleland of Georgia unseated in a sharp-edged campaign and lost a Minnesota seat when Sen. Paul D. Wellstone died in a plane crash. The remaining tool available for blocking Bush judicial nominees was the filibuster.
Leaked memos from Kennedy's office sketch the arguments used to persuade reluctant Democrats to test the filibuster on Estrada. "It will be harder to defeat him in a Supreme Court setting if he is confirmed easily now," the staffer summarized. A successful filibuster strategy would require Democrats to approve most Bush nominees to take off the heat for resisting a few, the aide wrote. But it would thwart GOP efforts to set up an "assembly line" of confirmations and -- for good measure -- these fights against conservative judges "particularly energized" the Democratic base.
Another memo indicated that Sen. Evan Bayh (D-Ind.) was dragging his feet over the filibuster. The Kennedy aide urged his boss to cajole Bayh and to explain to him just how bitter and politicized the nomination process had become. Later, an aide offered talking points for Kennedy to use in a speech to the entire Democratic caucus. "I've been here for 40 years . . . and this Administration is the worst," the script went. "They dare us to prevent them from packing the courts of appeals with ideologues. . . . We can't repeat the mistake we made with Clarence Thomas."
On that note, the leaked memos return the story to the bloodiest episode in the judiciary committee feud: the 1991 confirmation battle over the last Republican nominee to the Supreme Court.
With an election once again looming, the nominations process is virtually certain to remain bogged down for at least a year. Beyond that, it is hard to know how to move the feuding committee from rancor to reason.
"Judicial politics motivates the base of both parties," said Mit Spears, a Washington attorney who vetted judges and pushed confirmations during the Reagan administration. "But it's bad for the rest of us, because we need a system to administer justice. And the number of good potential judges who are willing to put up with the politics is decreasing every day."
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