Texas' GOP senators fight to retain control of federal judge nominations
08:01 AM CDT on Tuesday, March 17, 2009
By TODD J. GILLMAN / The Dallas Morning News
tgillman@dallasnews.com
dallasnews.com
WASHINGTON – Two weeks before Barack Obama won the presidency, Texas senators did what they'd done many times before. They invited lawyers to apply for lifetime appointments as federal judges.
Scores of applications poured in. A legal panel handpicked by the Republican senators – said to consist almost entirely of well-connected Republicans, with nary a plaintiff lawyer among them – narrowed the field.
But with Democrats in complete control of the federal government, Texas Democrats say, that process will no longer do. The screening system is on hold, beginning a fight that has already strained relations in Texas' congressional delegation and will test Obama's promises of bipartisanship.
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"We've had an election, and the process works differently than if Senator McCain or President Bush was in office," said Rep. Lloyd Doggett, D-Austin, who is leading the effort to put Texas Democrats in control of nominations.
The Republican senators, Kay Bailey Hutchison and John Cornyn, will "have a vote on anyone that is submitted, and I'm sure the White House will make them aware of our recommendations," Doggett added.
The senators say that's not nearly good enough. They've pushed back hard, meeting privately with White House counsel Greg Craig and demanding an ongoing and central role in selecting judges.
At stake are vacancies on Texas' busiest courts – in San Antonio, El Paso and Laredo – plus a fourth in Houston, where a judge just resigned for misconduct. The same process is used to name U.S. prosecutors in Dallas and three other federal districts.
Cornyn, a Judiciary Committee member who has been at the vanguard of numerous nomination fights, said he wants a "reasonable accommodation" with the White House and will block nominees if Democrats try to circumvent him.
Senate rules make that relatively easy. The committee won't vote without a nod from a nominee's home state senators, submitted by "blue slip."
"The White House can pick whoever they want," Cornyn said, "but we can also withhold a blue slip on a nominee and obviously that kind of confrontation doesn't serve anybody's best interest."
Trial judges rarely affect national policy, so the fights are far more intense over appellate judges. In that sense, the Texas tussle could be viewed as a warm-up act. Obama will probably end up naming hundreds of judges, including at least two Supreme Court justices. So lawmakers are laying down markers.
The White House had no comment on which process it favors for selecting judges for Texas and 13 other states without a Democratic senator. Craig wasn't made available for an interview.
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Last month, Texas Democrats in Congress declared after a meeting with Craig that the White House agreed that they should be in charge of the screening.
By then, the senators' Federal Judiciary Evaluation Committee had already narrowed a batch of 77 applicants for the San Antonio judgeship to a half-dozen.
The senators would identify only two of the 40 or so members of the statewide committee: chairman Dan Hedges of Houston, who has led the panel since 2001, and vice chairwoman Colleen McHugh of Corpus Christi, a former state bar president and former chair of the state's public safety commission.
"It's largely Republican, as you would guess," Hedges said. "We will add some Democrats."
Hedges, a partner at Porter & Hedges, was a U.S. attorney for four years, appointed by Ronald Reagan. He defends the committee's fairness and the quality of its selections.
"I haven't heard anybody say anything bad about the committee," Hedges said. "It's an absolutely blue-ribbon quality of lawyers."
That assertion is impossible to test, given that he also declined to name its members.
Senators like the screening committee system because it buffers them from being lobbied by applicants, their friends, and interest groups. Hedges said the anonymity encourages candor.
Hutchison said she's confident the system will survive, allowing her to take counsel from knowledgeable lawyers, and that Craig will end up agreeing to consult with her and Cornyn.
"He [Craig] is in the process of deciding how they want to work with states that have Republican senators," Hutchison said, adding, "We are in the process of changing the committee."
Doggett, a former Texas Supreme Court justice, scoffed at the idea that "adding a few token Democrats will make any difference. ... I've never known anyone who said, 'I'm on the screening committee.' "
Each side has leverage.
Senators have blue slips and the filibuster. Democrats have the Oval Office.
Various systems have been used through the years in circumstances similar to those in Texas.
In Pennsylvania, the two GOP senators picked one judge for every two Bill Clinton and his allies selected. In California under George W. Bush, the two Democratic senators used bipartisan panels.
A top expert on judicial selection, political scientist Sheldon Goldman at the University of Massachusetts at Amherst, said the Texas Democrats "have a strong point."
Presidents, including Bush, have filled 80 to 90 percent of district court vacancies with members of their own party, he said.
"Why should that be different for the Obama administration?" he said. |
