Bush’s Judicial Gamble
Bush sends a diverse group to the Senate.

May 9, 2001 9:40 a.m.

fter weeks of threats from Senate Democrats, this afternoon George W. Bush will send to the Senate the names

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of eleven nominees to the federal circuit courts of appeal. The president's choices — he picked two Democrats, both Bill Clinton nominees, as well as several solid conservatives — reflect the White House's understanding of how difficult it will be to confirm judges who are opposed by key Democrats in the 50-50 Senate.

First the Democrats. Bush will renominate Roger Gregory to the Fourth Circuit Court of Appeals. Gregory was originally nominated by Bill Clinton, who used a recess appointment to place him on the court after the Senate refused to act on the nomination. Democrats have made Gregory a cause celebre in recent months, alleging that Republican opposition to Gregory, who is black, was racially motivated. They have aggressively pushed Bush to name Gregory, a move that was also approved by home-state senators John Warner and George Allen, both Republicans, and by Virginia governor James Gilmore, head of the Republican National Committee.

"That kind of boxed him in," says one Senate aide of the effect that Republican assent to Gregory had on the president's decision-making. Now, although Bush made the decision under some duress, he has decided to portray the nomination of Gregory as part of his effort to reduce the level of partisan conflict in Washington. He will offer Gregory as an olive branch to Democrats, proof that he intends to back up his "change the tone" rhetoric with action.

But Democrats know the pressure Bush was under — they created it — and there is no clear evidence they will take the gesture very seriously. Rather, it seems more likely they will praise the choice of Gregory as the least the president could do (although it is in fact an unprecedented action for a president to pick up a nomination from a president of the opposite party). And then Democrats will continue to oppose many of Bush's other choices.

Bush will nominate another Democrat, Barrington Parker Jr., a Clinton-appointed District Court judge, to the Second Circuit. The Parker nomination seems less a peace offering than a realization that Bush cannot do much to change the liberal tone of the circuit, which covers New York and Connecticut. Putting a judge on the circuit requires the cooperation of Democratic senators Charles Schumer, Hillary Rodham Clinton, Christopher Dodd, and Joseph Lieberman. The Parker nomination is Bush's concession that this is the best he could do.

Some of Bush's other choices, like Ohio Supreme Court Justice Deborah Cook and Texas Supreme Court Justice Priscilla Owen, are not well known nationally. Others, like former Strom Thurmond aide Dennis Shedd, are strong conservatives who are likely to be confirmed without much trouble. Yet another conservative, Terrence Boyle, has been the subject of intense partisan fighting for years. A favorite of North Carolina senator Jesse Helms, Boyle was originally nominated by the first President Bush, but was never confirmed. His renomination is likely to cause more battles.

Three of Bush's picks stand out as stars of the conservative legal movement. Michael McConnell, nominated for the 10th Circuit, is a widely respected University of Utah law professor — he has also been at the University of Chicago and Harvard — who has argued 11 cases before the Supreme Court and has also written widely on the issue of religion and the constitution. Although a serious conservative, he clerked for liberal Supreme Court justice William Brennan and has the support of liberal lawyers like Cass Sunstein and Walter Dellinger, which the White House hopes will help in his confirmation. In addition, McConnell comes to the federal bar from Utah, which will give him an extra measure of support from Judiciary Committee chairman and Utah senator Orrin Hatch.

Bush will nominate Miguel Estrada to the District of Columbia Circuit, often viewed as a grooming ground for future Supreme Court Justices. Estrada, just 39 years old and often described as a legal superstar, is a partner at the Gibson, Dunn law firm and has also been a federal prosecutor and assistant solicitor general of the United States. "He's very pro-life and has a great life story," says one Republican of Estrada, who came to the United States from his native Honduras when he was 15 years old. Despite — or perhaps because of — Estrada's impressive background and impeccable credentials, Republicans expect a fight over his nomination, because liberal interest groups are likely to view him, correctly, as a potential candidate for the Supreme Court.

Finally, there is Jeffrey Sutton, nominated for the 6th Circuit. Sutton is a partner at the Jones, Day law firm and has been solicitor general of the state of Ohio, where he developed his expertise on federalism issues. "He is one of the leaders of in-court arguing of the federalism jurisprudence coming out of the Supreme Court," says a Senate aide. His views on states' rights might become the subject of a contentious nomination process, especially because leading Senate Democrats like Patrick Leahy, Joseph Biden, and Charles Schumer have all been vocal critics of such thinking.

In addition to those he nominated, the president made news by not nominating — at least for now — some candidates who were under consideration for judgeships. As in the cases of Gregory and Parker, Bush's actions reflect the difficulties he faces in the 50-50 Senate. The president did not, for example, nominate Rep. Christopher Cox to the 9th Circuit, after California Democrats Barbara Boxer and Dianne Feinstein objected. And he did not nominate Peter Keisler to the 4th Circuit after Democrats Barbara Mikulski and Paul Sarbanes objected. The White House is said to be in active talks with those home-state Democrats, but it is not clear whether the nominations will ultimately go forward.

Finally, Bush has planned an elaborate rollout ceremony to announce his choices. Usually such events — this one will be held in the East Room of the White House — are reserved for announcing Supreme Court nominations, but Bush apparently wants to emphasize the importance he places on his circuit-court choices. In his speech today, the president is likely to place great emphasis on the diversity of the group — six of the eleven nominees are women or minorities — in an effort to undermine expected Democratic criticism on that basis.