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SCHUMER V. BUSH: BATTLE FOR THE COURTS

When President Bush, in his 2000 campaign, called the two most conservative members of the Supreme Court models for his nominees to the federal bench, Sen. Charles E. Schumer thought he saw an opening.

In the opinion of the New York Democrat, Bush was setting up an ideological test for federal judges just by saying he liked Justices Antonin Scalia and Clarence Thomas.

Soon afterwards, Schumer began a campaign to reshape the way the Senate deals with judicial nominees -- including members of the U.S. Supreme Court.

Senate Democrats, Schumer decided, would put ideology on the front burner in the confirmation process.

Schumer's deployment of the filibuster to smoke out the ideologies of Bush nominees is working, for now.

"I am the leader (of the filibuster movement), and, you know, I'm proud of it," said the senator from Brooklyn.

But this has brought Schumer into almost weekly confrontations with the president.

And now the White House said it is working with Senate Republican leaders to disable the filibuster rule, which permits a senator to engage in unlimited debate, thus preventing action on a piece of legislation or nomination. It takes 60 of the Senate's 100 votes to end a filibuster.

Schumer has used the rule to block confirmation of two appellate court nominees who Bush says have been rated "well qualified" by their fellow lawyers.

Just days ago, Schumer added two more names to the list of Bush nominees he wants to block.

The president called the Schumer-led filibusters "partisan obstructionist tactics, unacceptable and inconsistent with the Senate's constitutional responsibility."

Schumer said he is up for the confrontation.

"I think the president is awash in a deal with the devil: Let the far right pick the federal bench and they will leave me (the president) alone," he said in an interview.

The Bush administration is also ready.

"What is really going on here is a divide between those who know and work with these nominees and opponents from special-interest groups here in Washington who have distorted their records," said one White House official, who spoke on condition of anonymity.

Schumer claims all four nominees he is trying to block are from the "fringe" of the far right, nominees who would overturn Roe v. Wade if they make it all the way to the Supreme Court.

Range of change

In addition to the future of Roe v. Wade, which legalized abortion, Schumer said the stakes in the fight over judges involve a whole range of women's rights, the fabric of federal regulations and the shape of tomorrow's Supreme Court.

"They want to get rid of unions," he said. "They want to decimate the Family and Medical Leave Act, the Clean Air Act, the Clean Water Act. They want to get rid of any kind of regulation.

"They want to cut back on the civil rights laws."

His critics claim Schumer, a minority member of the Judiciary Committee, is trying to rewrite the Constitution, which empowers the president to nominate jurists.

"Schumer wants to impose a liberal litmus test now on all nominees," said John Nowacki, legal policy director of the Free Congress Foundation, a conservative group.

"He wants to make the Senate co-equal with the president on the selection of judges, something that will rewrite 200 years of constitutional history," Nowacki said.

Schumer is drawing heavy pressure for his efforts. He is regularly denounced on the editorial pages of the Wall Street Journal and the more liberal Washington Post.

Attorney General John Ashcroft and White House counsel Alberto Gonzales have urged him to relent.

Bush has called him to try to talk him out of his stand, calling Schumer by his nickname and middle name, "Ellis."

In recent weeks, Schumer's allies have defeated the Republican majority in five votes to force cloture -- a vote to end filibuster -- on Miguel Estrada, a former high-ranking attorney in the Justice Department.

Bush wants to put Estrada, an immigrant from Honduras, on the federal appellate court in the District of Columbia.

The Schumer forces also have blocked a confirmation vote on Priscilla R. Owen, a Texas State Supreme Court justice, for the federal appellate court serving Texas and the South. Women's abortion rights organizations claim she has undermined those rights in her rulings in Texas.

Schumer announced he will lead filibusters against Carolyn Kuhl, whom Bush named to the appellate court on the West Coast, and against Charles W. Pickering Sr., for the appeals court in the South. Pickering's nomination was defeated by the Senate when the Democrats controlled it last year, but Bush renominated him.

Some observers speculate these unprecedented clashes are mere warm-ups for the battle Bush could face if he tries to make Scalia or Thomas chief justice of the United States if William H. Rehnquist retires.

More fights

His critics anticipate more judicial appointment fights.

"Schumer argues for the liberal wing of the Democrat Party," said Nowacki. "Schumer seems perfectly happy to label anyone who disagrees with his views as 'extremist.'"

Schumer spokesman Phil Singer said the senator does not have a litmus test on any one issue. For instance, Singer said, Schumer does not know whether Richard C. Wesley of Livingston County is pro-life or pro-choice. Bush has nominated Wesley, a state Court of Appeals judge, to the federal appellate court in New York City.

Wesley, who is also supported by Sen. Hillary Rodham Clinton, D-N.Y., had his confirmation hearing Thursday.

"Sen. Schumer looks at the entire package," Singer said.

Countering the Republicans' "obstructionist" charge, Schumer noted that, of 126 nominees Bush sent to the Judiciary Committee, the Senate approved 124.

"I voted for 119 of them," Schumer said. "When they ask me about that in Buffalo, I point out that I backed 98.4 percent of his nominees. Then they said, 'Oh,' we didn't know that.' "

High standards

Schumer said his standards for nominees are "excellence, moderation -- not too far left or too far right -- and diversity -- the bench should not be comprised of all white males."

Bush, he said, has done "a pretty good job" on excellence and diversity but said the White House has too often served up too many nominees that "are way beyond the mainstream."

One reason, Schumer said, is that a conservative organization, the Federalist Society, feeds prospective nominees to the White House. The society, 25,000 strong, has members on many law school faculties and is led by former Justice Department officials of the Reagan administration and Senate Judiciary Chairman Orrin Hatch, R-Utah.

The society's president, Eugene B. Meyers, said the organization does not propose candidates for the bench but does encourage its members to "take an active interest" in the bench and other public affairs.

Solicitor General Ted Olson, the attorney who argued the case for Bush that settled the 2000 election, is a member.

Jeffrey L, Mazzella, a top official with the conservative Center for Individual Freedom, said Schumer's stand against Estrada and Owen is "pretty hypocritical."

"Not long ago, Schumer and Sen. (Patrick J.) Leahy (D-Vt.) called endorsement by the American Bar Association 'the gold standard,' " Mazzella said.

"Here we have both Estrada and Owen judged 'well qualified' unanimously by the ABA," Mazzella said.

Schumer claimed Estrada failed to answer any questions about his judicial philosophy put to him in his confirmation hearings.

"He actually answered 125 questions in an eight-hour hearing, questions that other judges were not asked," Mazzella said.

Schumer also said Estrada even declined at his hearing to name three judges he admired. True.

However, in later written answers to the committee, Estrada named Supreme Court Justices Lewis Powell and Anthony Kennedy as well as Amalya Kearse, a federal appellate judge in New York City.

Estrada also has been endorsed by former Democratic Solicitor Generals Seth Waxman and Drew Days III, each of whom Estrada served under.

Schumer's claim that Estrada declined to speculate on his judicial philosophy grates against a standard that Schumer, in June 2001, wanted to put on the table.

Schumer said then it was not forthright for judicial nominees to decline to discuss their ideology at their confirmation hearings.

"If the president uses ideology in deciding whom to nominate to the bench, the Senate, as part of its responsibility to advise and consent, should do the same, in deciding whom to confirm," Schumer said in a letter to the New York Times.

"Pretending that ideology doesn't matter -- or, worse, doesn't even exist -- is exactly what the Senate should do," he wrote.

Rewriting the rules

By the end of June, Senate Majority Leader Bill Frist, R-Tenn., will try to rewrite the rules on filibusters in order to force votes on all of Bush's judges. Schumer predicted Frist won't win any vote diluting the filibuster rule.

Even so, the White House said Thursday that Senate Rules Chairman Trend Lott, R-Miss., a strong backer of Pickering, will hold hearings on how to dilute the power of the filibuster next month.

e-mail: dturner@buffnews.com

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