From the WSJ Opinion Archives
POTOMAC WATCH
Blue Slip
How Feinstein is repaying Bush on judges.
When President Bush announces his first judicial nominees today, the news will be who isn't standing behind him.
My sources said yesterday his choices won't include three highly qualified conservatives, Rep. Chris Cox and Judge Carolyn Kuhl of California and Maryland attorney Peter Keisler.
As late as last week, Mr. Bush had planned to name all three to prestigious circuit-court judgeships. But his advisers pulled back their names because of opposition from Democratic senators in their home states. The trio may make a comeback at some later date, but their withdrawal exposes the illusion of Beltway "bipartisanship." Senate Democrats are turning judicial selection into a brass-knuckled partisan street fight.
So how is he now being repaid? When word leaked that Mr. Bush was considering Mr. Cox for a Ninth Circuit seat, California's liberal Sen. Barbara Boxer immediately promised a "blue slip." That's what senators call a blackball, intended to block even a hearing and vote. It's usually saved for only the most egregious nominees. Of course no one expects a grace note from Ms. Boxer, liberalism's Marge Schott.
More remarkable is the behavior of California's other Senate Democrat, Dianne Feinstein. She's long posed as her state's more civilized senator, the one you can talk to. But suddenly she's acting like Ms. Boxer's acolyte, hinting that she may join her sister's blue slip on Mr. Cox. Two home-state blue slips have been automatically disqualifying under Senate tradition, while one has not.
A spokesman says Ms. Feinstein hasn't yet decided on Mr. Cox. And word is she's miffed that she wasn't adequately consulted by the White House.
But she also told one reporter she's concerned that Mr. Cox is from a "conservative" district. In a meeting with him last week, she also rolled out a July 1992 article he'd written for The Wall Street Journal's editorial page endorsing--fasten your seatbelts--judicial restraint. Ideology seems to be as much on her mind as is consultation.
Ms. Feinstein's hostility is all the more amazing considering how far Mr. Bush has gone to appease her on judges. White House Counsel Al Gonzales recently agreed to establish four bipartisan commissions to select judges for California's district courts, the level just below the Ninth Circuit. Mr. Bush will pick three members on each commission, while she and Ms. Boxer name the other three. Only candidates with four votes could be nominated, giving the senators de facto veto power over Mr. Bush's choices.
This is a huge and unusual concession, especially for a president from the opposition party. And for that reason it's widely disliked on the right. One GOP congressman calls it "truly monumental folly," pointing out that one of Ms. Feinstein's political donors is trial-lawyer superstar Patricia Hynes.
An associate of Silicon Valley-scourge Bill Lerach, Ms. Hynes also chairs the American Bar Association's standing committee on judicial selection. That's the same ABA committee the White House recently purged from its own judicial-selection process. Now Ms. Hynes may get backdoor influence via Democratic senators.
Ever-hopeful White House aides hope Ms. Feinstein isn't a lost cause. So as one more peace offering, they decided to withhold Mr. Cox's name from today's list of initial Bush nominees. To help with appearances, they also held their other Ninth Circuit nominee, Ms. Kuhl, a well regarded conservative from Los Angeles.
The Ninth Circuit, for example, represents nine states, including GOP-solid Arizona, Alaska and Idaho. And though he's being blue-slipped by two Maryland Democrats for the Fourth Circuit now, the 40-year-old Mr. Keisler could later be nominated to the D.C. Circuit.
The bigger story here is that Democrats have decided to turn judicial selection into political blood-sport. That's why Mr. Bush is elevating the issue today with the kind of public speech and photo-op usually reserved only for Supreme Court appointments. He's also nominating two Clinton picks as a (probably futile) goodwill gesture, including Roger Gregory, the first African-American ever for the Fourth circuit.
To his credit, Mr. Bush is also appointing some first-rate conservatives today, such as Miguel Estrada to the D.C. Circuit, where he'll be on Supreme Court short lists for 20 years; and Jeffrey Sutton, a rising star of the new federalism movement, for the Sixth Circuit.
But that's small consolation to Mr. Cox.
Mr. Gigot is a member of The Wall Street Journal's editorial board. His column appears Fridays in the Journal and on OpinionJournal.com.
