By Glenn Sugameli, Senior Legislative Counsel with Earthjustice and head of Judging the Environment

In 2005, when the Senate GOP leadership planned to violate the Senate rules to ban filibusters of judicial nominations, then-Senator Trent Lott (R-MS) dubbed it the “nuclear option” because it would shut down the Senate. Editorial boards from 47 states and D.C. (including more than 70 that endorsed President Bush) wrote over 600 editorials against the nuclear option., and editorial cartoonists ridiculed supporters.  A shutdown was averted by a last-minute agreement by a bipartisan “Gang of 14” Senators.

Now, “Senate Shutdown,” an April 2^ndWall Street Journal editorial, relates how Senate Judiciary Committee ranking Member Arlen Specter (R-PA) “stop[ped] by to chat about his plans ‘to close down the Senate.’” On April 3, Senate Minority leader Mitch McConnell (R-KY) said he was considering this option.

This nostalgia for shutdown threats is unjustifiable. Senate Judiciary Chairman Patrick Leahy (D-VT) recently explained the record on circuit court of appeals nominees: “nearly three quarters of President Bush’s nominations have been confirmed, compared to just over half of President Clinton’s.” Bizarrely, eight Republican Members of the Judiciary Committee chose to protest by delaying for an hour the April 3^rd Committee voice vote approval of Catharina Haynes to the 5^th Circuit Court of Appeals, which was followed by a hearing on four district nominees who were supported by their home-state (Missouri and Virginia) Senators.

The current threats are also misdirected. President Bush has been “Needlessly Provoking the Senate” to create artificial vacancies, as I explained in my March 3rd column. 

Since then, the President has taken one very positive step. He followed up on the withdrawal of 4^th Circuit nominee E. Duncan Getchell, who was opposed by home-state Senators John Warner (R-VA) and Jim Webb (D-VA), by belatedly nominating Virginia Supreme Court Justice G. Steven Agee. Last June, after interviewing a dozen candidates, Warner and Webb jointly recommended Agee and four others for two Virginia 4^th Circuit seats. Senator Leahy immediately stated that “I expect the Judiciary Committee and the Senate will proceed promptly to consider and confirm Justice Agee’s nomination.”

If Senators really want to confirm lifetime in this election year, they will urge President Bush to choose another name from the Warner-Webb list, and to withdraw extreme nominees and the six Circuit Court nominees whose selections were designed to generate hone-state Senator opposition.

Extreme Nominees

The pending 4^th Circuit nominee from South Carolina, Steve A. Matthews , advised Attorney General Meese on selection of nominees for federal judgeships. Legal analyst Dahlia Lithwick wrote in Slate that his resume “suggests that Matthews’ strongest credentials include his role as former state chapter president of the Federalist Society and membership [with Meese] 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 and Meese 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 J. Conrad Jr., another pending 4th Circuit nominee, also has an incendiary record.  While former Sen. John Edwards (D-N.C.) was in Congress, he blocked Conrad’s district court nomination. In 2005, Sen. Patrick Leahy (D-Vt.) reluctantly approved it after highlighting Edwards’ concerns and Conrad’s “inflammatory writings.”  These include Conrad’s 1999 letter in the Catholic Dossier, identifying himself as a “federal prosecutor,” denouncing Sister Helen Prejean as a “church-hating nun” and insisting that he “found only liberal drivel” in Dead Man Walking, Sister Helen’s book about her efforts to help people on Louisiana’s death row  Conrad’s letter displays far-reaching contempt:  “The ACLU, Amnesty International and other like-minded organizations are her guiding lights.  For fellowship, well, there is the ‘Sisterhood.’”  Implausibly, he told the Senate, “I respect and admire Sister Helen,” and that he did not think any civil rights groups (including the ACLU and Amnesty International) were “radical” or “fringe.”

When Conrad sat by designation on the 4th Circuit, he joined a notorious decision that allowed mining companies to bury streams with waste. That decision reversed a district court judge and led three circuit judges (of eight voting) to dissent from denial of rehearing because the decision “eviscerates” key language of the Clean Water Act and undermines its protective purpose.

President Bush has made a mockery of the Senate’s constitutional “advise and consent” duty, by only accepting advice on appellate nominees from senators who are willing to rubber-stamp his preferred choices, no matter how extreme. For example, Republican Senators Lindsey Graham and Jim DeMint agreed to support Matthews after Bush dismissed their initial choice, state Court of Appeals Judge John Kittredge, a 16-year veteran of the bench.

For more see www.judgingtheenvironment.org

-Glenn Sugameli has headed Earthjustice’s Judging the Environment project on federal judicial nominations and the environment for six years