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The Providence Journal (Rhode Island)

Bush Plays Politics with Judicial Nominations

Glenn Sugameli

President Bush is misusing nominations for lifetime judgeships to provoke unnecessary fights He has refused even to consult with home-state U.S. senators on a series of pending nominations, including trial Judge William E. Smith for the only Rhode Island-based seat on the six-judge U.S. Court of Appeals for the 1st Circuit, and Lincoln D. Almond to be a federal trial judge in the state. Senate Judiciary Chairman Patrick J. Leahy (D.-Vt.) suggested that this failure to consult with Rhode Island's senators was "playing politics."

Indeed, the overall pattern reveals that President Bush is pandering to his right-wing base by turning judicial nominees into political pawns chosen because they will not be confirmed by the Senate. Creating unnecessary vacancies provides fodder for unjustifiable "obstructionist" charges against senators who have confirmed hundreds of Bush judges.

Repeatedly, President Bush has rejected home-state senators' "advise and consent" suggestions of numerous conservative Republican alternatives who would be readily confirmed to appellate judgeships. These include Bush federal district court judges and, in at least one case, Bush's own initial choice. He previously refused to discuss then-Sen. Lincoln Chafee's 1st Circuit recommendation of state Supreme Court Justice Robert Flanders, who would have been supported by Senators Jack Reed and Sheldon Whitehouse.

Newspapers and commentators universally praised a bi-partisan initiative by Virginia Republican Sen. John Warner and Virginia Democratic Sen. Jim Webb, who interviewed more than a dozen candidates for two 4th Circuit vacancies and presented five joint recommendations, including a Bush district court judge. President Bush ensured a continuing vacancy when he instead nominated Duncan Getchell, whom they had interviewed and rejected.

Maryland's senators indicated that they could support filling another 4th Circuit seat with any of the state's eight Republican federal district judges, including three nominated by Bush. As The Baltimore Sun editorialized, Bush's subsequent choice of Rod Rosenstein "seems primarily intended as a poke in the eye to Maryland's two senators" who had publicly said that Rosenstein lacked the requisite deep roots in the state's legal community.

New Jersey's senators were victims of a bait-and-switch. After they agreed to Bush's initial 3rd Circuit choice, the actual nominee was announced before they were even informed.

Legal analyst Dahlia Lithwick wrote in Slate that the rÉsumÉ of a pending 4th Circuit nominee "suggests that [Steve A.] Matthews' strongest credentials . . . include his role as former state chapter president of the Federalist Society and . . . membership on the board of directors for the Landmark Legal Foundation," which tried "to nominate Rush Limbaugh for a 2007 Nobel Peace Prize."

Matthews also served as an officer of Landmark Legal, which is headed by talk show host Mark R. Levin, who called global warming "nonsense" and "phony," and condemned Sen. John McCain (R.-Ariz.) and Sen. Joseph I. Lieberman (I.-Conn.) as "liberal idiots." In Men in Black: How the Supreme Court Is Destroying America, Levin thanked Matthews for having "supported me in all I do" and wrote that the Supreme Court was "merely upholding the Constitution" in its long-discredited 1936 ruling that Congress lacks authority to regulate employer-employee relations, including "wages, working conditions, the right of collective bargaining, etc."

Robert Conrad Jr., another pending 4th Circuit nominee, also has an incendiary record. In 2005, Sen. Patrick Leahy (D.-Vt.) reluctantly approved Conrad's district court nomination, citing objections that John Edwards had expressed when he was a senator and Conrad's "inflammatory writings." These include a published letter in which Conrad wrote that Sister Helen Prejean was a "church-hating nun" and Dead Man Walking, about her efforts to help people on Lousiana's death row, was "only liberal drivel." On the bench, Conrad joined an opinion that three dissenting judges wrote "eviscerated" key Clean Water Act language.

In his recent Federalist Society speech, President Bush hypocritically attacked senators for "politicizing" judicial nominations. In fact, however, the Senate has exercised its advise-and-consent constitutional responsibility by confirming the vast majority of nominees and refusing to rubber-stamp a few of those with the most extreme records.

Unfortunately, President Bush has chosen to inflame the right wing by reigniting unnecessary nomination wars.

Glenn Sugameli is senior legislative counsel for Earthjustice.

© 2007 The Providence Journal Co.

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