Anna Palmer has, "Conservatives Fear 4th Circuit Is Slipping Away," in Legal Times. It starts with reporting on the nomination of Leslie Southwick to the Fifth Circuit.
When Pennsylvania Republican Sen. Arlen Specter asked that Leslie Southwick's nomination to the 5th U.S. Circuit Court of Appeals be taken off the Senate Judiciary Committee's agenda last month, it was an acknowledgment that after weeks of trying, Southwick just didn't have the votes.
Although Republicans are expected to push his bid again after the July 4 break, the stalemate over the nomination is emblematic of the increasingly tough environment the Bush administration faces in getting federal judges onto the bench.
The game, as it were, has changed, and the president's window is closing.
After a period of relative ease in securing two U.S. Supreme Court appointments and several controversial judicial nominations after the Senate's "Gang of 14" deal two years ago, the question remains whether the GOP will continue to make such gains in the federal judiciary during President George W. Bush's last 18 months in office.
"[Bush's] opportunity to fill vacancies is shrinking, and he probably will be unable to make the kinds of nominations that he made prior to 2006," says Michael Gerhardt, a law professor at the University of North Carolina.
Nowhere will that be more apparent than on the influential 4th Circuit. With four vacancies and a fifth judge waiting to be relieved before taking senior status, the balance of the appeals court, which has played a key role in terrorism cases and has long been a bastion of conservative rulings, could remain unstable.
And:
How Southwick's nomination to the 5th Circuit plays out could help determine the playbook for securing potential nominees for the 4th. Initially, Southwick, Bush's third try at filling the appeals court slot based in Mississippi, wasn't expected to ignite controversy, and conservative advocates were unprepared for the strong opposition to his confirmation from liberal groups. At issue are two opinions Southwick joined but did not write. In one case, Southwick joined a majority opinion that upheld the reinstatement of a white social worker who used a racial epithet to describe a black co-worker. In the other case, which has caused opposition from gay rights groups, Southwick joined a majority opinion that said a mother's bisexuality could be a factor used by a judge when deciding a child custody suit.
And although the Republican leadership has vowed to use procedural tactics to delay floor action if the Democrats don't move on judges, their power is waning with Democrats looking to the 2008 presidential election.
"I think right now Democrats are optimistic that they are going to win the White House in 2008 and therefore are all the more reluctant to let any seats be filled," says M. Edward Whalen III, president of the Ethics and Public Policy Center, a conservative nonprofit.
But conservatives aren't surrendering just yet. According to the Committee for Justice's Levey, judicial advocates are starting to have coalition meetings and are preparing for battle should Bush move on a 4th Circuit nominee.
"Republicans will extract a heavy price should Southwick fail," Levey says. "With four or five vacancies on the 4th Circuit, if they were all to be unfilled at the end of the president's term, it would be a huge lost opportunity."
Earlier coverage of the Southwick nomination is here.
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