by James Oliphant
Storm clouds continue to gather in the Senate over federal judges. Republicans, eager to fill some key appeals court vacancies with conservatives before the end of President Bush's term are stepping up the pressure on Patrick Leahy, the chair of the Senate Judiciary Committee.
Last month, Senate minority leader Mitch McConnell (R-Ky.) secured a pledge from Senate chief Harry Reid (D-Nev.) to send three circuit court nominees to the Senate floor for a vote by Memorial Day.
Ah, but which three nominees? That's the question.
McConnell and Sen. Arlen Specter, the ranking member of Judiciary, are pushing for two nominees for the Fourth Circuit: Robert Conrad and Steven Matthews and one for the D.C. Circuit, Peter Keisler.
But Leahy has shown no inclination those are the nominees he plans on bringing up before the committee. Instead, he appears to have zeroed on a pair of two Sixth Circuit nominees and a different Fourth Circuit choice.
What's at stake? In the Fourth Circuit, quite a bit. Five vacancies remain unfilled on the court based in Richmond, Va. It has long-been a conservative judicial power center, sporting the likes of J. Harvie Wilkinson III and J. Michael Luttig, who has since left for a job at Boeing Corp.
Some of those slots have been opened for years, despite White House attempts to fill them with the likes of William Haynes II, the former Pentagon general counsel who was involved in crafting administration interrogation policy for suspected terrorists. (Because of that, he went nowhere once the Democrats took over.)
President Bush pulled the nomination of two other picks after it was clear they also didn't have enough support. Another lapsed after complaints that the choice, ex-White House aide Claude Allen, was unqualified. (Allen, bizarrely, was forced to resign his White House job in 2006 after being arrested for retail fraud in Maryland.)
Civil rights groups such as People For the American Way believe both Conrad and Matthews are too conservative to be palatable. They have urged Leahy to invoke the so-called "Thurmond Rule," a Senate tradition of not voting on controversial judicial nominees during presidential election years.
Matthews is a former official who worked in the Reagan administration Justice Department and was counsel to William Bradford Reynolds, who, critics say, was hostile to enforcing federal civil rights laws. It also doesn't help Matthews' cause that he once nominated Rush Limbaugh for the Nobel Peace Price.
Conrad is currently a federal district court judge in North Carolina. He has a record of harsh criticism of abortion rights. He was, however, confirmed to that federal judgeship in 2005.
Keisler, nominated for a seat on the Washington D.C. federal appeals court, worked in the Justice Department under former Atty. Gen's: John Ashcroft and Alberto Gonzales. He also worked as a lawyer in the Reagan administration.
The Fourth and the D.C. Circuit could be considered two of the most important courts for conservatives in the country. For example, current Supreme Court Justices Antonin Scalia, John Roberts, and Clarence Thomas (as well as Ruth Bader Ginsburg) came from the D.C. Circuit, which rules on cases involving federal agency regulations.
The five vacancies on the Fourth Circuit could conceivably shift the entire direction of that court if filled by a Democratic president.
Leahy, however, has indicated that he wants to push through the nomination of Steven Agee, who was only recently nominated to the 4th Circuit. The difference? Agee, currently a justice on the Virginia Supreme Court, enjoys the support of Democratic Sen. Jim Webb (as well as Republican Sen. John Warner) in Virginia. (States that compose the federal circuits are given "seats" or slots; Agee was nominated to the Virginia seat.)
And he is focused on two nominees to the Cincinnati-based Sixth Circuit, Ray Kethledge and Helene White.
White was nominated just last month after a deal was struck between the White House and Democratic senators and has the support of Democratic Sen. Carl Levin. The deal allows Kethledge, highly thought of by conservatives, to also get on the Sixth Circuit bench.
In their letter to Leahy this week, McConnell and Specter complained that the Judiciary Committee won't be able to get Agre, Kethledge and White finished by Memorial Day, which they say would break Reid's pledge. They urged to push through Conrad, Matthews and Keisler instead, who they say are ready to go.
Here is the release from Leahy, who has scheduled nomination hearings for White and Ketheldge for next week. Agee's hearing was held Thursday.