Cox’s Parting Shot
The California conservative gives up on a federal judgeship.

May 30, 2001 5:20 p.m.

ust a few weeks ago, California Rep. Christopher Cox seemed sure to be among George W. Bush's first nominees

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to the federal appeals courts — with the chance of someday moving even higher. "The imminent nomination" of Cox to the Ninth Circuit Court of Appeals, wrote columnist Robert Novak last month, "is widely regarded as a stepping stone toward the U.S. Supreme Court." Novak added that Cox "looks like one conservative who can be confirmed by a closely divided Senate."

But when the White House submitted its nominees to the Senate, Cox's name wasn't on the list. The congressman had run into opposition from his two liberal Democratic home-state senators, Dianne Feinstein and Barbara Boxer, who had both threatened to use the "blue slip" procedure to block his nomination. Still, many observers believed that the problem could be worked out — until last week, when Cox quietly withdrew his name from consideration.

Cox bailed out immediately after the defection of Sen. James Jeffords transferred control of the Senate to the Democrats. The switch meant that Vermont liberal Patrick Leahy would take over the Senate Judiciary Committee, guaranteeing that some of Bush's nominees will face long delays in confirmation — if they are confirmed at all. Despite his solid credentials, Cox might well have been one of them.

Amid all the furor over Jeffords, Cox's departure attracted little notice in the press. But now, in letters written to Feinstein and Boxer just before the Memorial Day holiday, Cox has revealed a bit of the anger that lay behind his decision to give up the fight.

The letter to Feinstein is somewhat conciliatory. As the nomination delay dragged on, Feinstein reconsidered her threat, finally telling the White House counsel's office on May 24 that she would not use the "blue slip" procedure to preemptively block Cox's nomination. "I appreciate your willingness to keep an open mind," Cox told her.

The letter to Boxer — who remained determined to use her "blue slip" on Cox — is a different story. "I will continue to oppose this anti-democratic abuse of the 'blue slip' policy — particularly as it applies to the Court of Appeals," Cox wrote. "A single senator, out of 18 who represent the Ninth Circuit, should not be able to deny the Senate the opportunity to conduct a hearing and a democratic vote on presidential nominees. At a minimum, the views of other liberal Democratic senators representing the Ninth Circuit, such as Sen. Ron Wyden (who would be strongly supportive were I nominated), should be given equal weight in determining whether a hearing and a vote can be scheduled."

Then there was Boxer's rationale for her opposition. "You have also made it clear that you believe it is acceptable to oppose a prospective judicial nominee on the basis of his or her political views," Cox wrote. "This is outside the mainstream of our entire constitutional tradition.... The fact that you disagree with my commitment to lower taxes, less spending, welfare reform, or a national missile defense should be irrelevant to a common understanding of the rule of law."

Finally, Cox addressed the strangeness of the circumstances that led to his decision. "That Sen. Jeffords's redesignation of himself as an Independent would change control of the Senate is as ironic as it was unpredictable," Cox wrote. "That its collateral consequence for me is a much longer career in Congress is perhaps fitting, since the possibility of appointment to the Ninth Circuit was itself a great surprise." Then, Cox — with a wry smile — delivered a threat to the woman he might one day challenge for her seat in the Senate. "I very much enjoy the opportunity to serve our country by writing law," Cox told Boxer, "and perhaps someday I will have occasion to thank you for the role you have played in keeping me at it."