Legal Times reports, "Stalemate Over Judicial Nominations Dampens Bush Legacy."
With just about 10 months left in his term, President George W. Bush is on track to leave office with fewer of his picks on the federal bench than his fellow two-term presidents Bill Clinton and Ronald Reagan.
Since 2001, Bush has had 294 district and appellate judges confirmed, but the prospect of getting many more through a Senate controlled by Democrats before Jan. 20, 2009, are slim.
By comparison, Clinton and Reagan, both of whom faced similar congressional opposition in the twilight of their administrations, each left office with more than 370 of their candidates confirmed, according to Senate statistics. And Bush is running only marginally ahead of Jimmy Carter, who left office after a single term with 262 nominees confirmed.
Bush has 187 judicial and executive nominations pending in the Senate. There are 28 pending judicial nominations -- 18 for federal trial slots and 10 for appellate court seats -- but none have been voted out of the Senate Judiciary Committee.
"At the pace we're going, we will be lucky to get to 10 [appellate confirmations]," says Curt Levey, the executive director of the conservative Committee for Justice. Levey says he expects the Senate to move on no more than four circuit judgeships this year, an extraordinarily low number.
Professors who study the judicial confirmation process say Democratic senators have little incentive to help a Republican president in an election year. They point out that in some instances Bush disregarded recommendations from senators in his own party, leaving him with less support to push nominees through.
Last year, the Senate confirmed only six of Bush's appellate court nominees and approved 34 district judges. During the final two years of their presidencies, Reagan had 17 circuit nominees and 67 district court nominees confirmed; Clinton secured 15 circuit judges and 57 district judge confirmations, according to a Congressional Research Service report.
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Some legal scholars and liberal groups say part of the reason judicial nominees aren't moving is that Bush hasn't pushed people that home state senators wanted on the bench.
In Virginia, Bush last year nominated E. Duncan Getchell Jr., a McGuireWoods partner and chairman of the firm's appellate practice team in Richmond to the 4th U.S. Circuit Court of Appeals -- where five of 15 seats are vacant. But Getchell was not on the list of five candidates recommended by Sens. Jim Webb, D-Va., and John Warner, R-Va. Getchell withdrew his name in January.
Similarly, Maryland's two Democratic senators complained that Bush nominated Maryland's U.S. Attorney Rod Rosenstein to the 4th Circuit without consulting them. "This has less to do with Democrats slowing down the pace," says Nan Aron, president of the liberal advocacy group, Alliance for Justice. "This has all to do with President Bush's failure to engage in meaningful consultation with Democrats."
Lawrimore says home-state senators' opinions have been considered before announcing a nominee. "We value the input of home-state senators and certainly take their opinions into consideration during the selection process," she says.
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, has insisted on home-state senator backing for any nominee. The only circuit court nominee to receive a hearing this year has been Catharina Haynes, a Baker Botts litigation partner and former elected Dallas judge who was nominated last July to the 5th U.S. Circuit Court of Appeals. Haynes has support from Texas' GOP Sens. John Cornyn and Kay Bailey Hutchinson. At least three other circuit nominees have home-state backing.
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