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Despite GOP gains, Democrats pledge fight over judges

Conservatives warn rivals to curb filibusters

WASHINGTON -- In a psychological war of words, Senate Republicans are issuing slightly veiled threats against their Democratic counterparts if the minority party continues blocking President Bush's choices for federal judgeships.

Learn from the election defeat of minority leader Tom Daschle, the Republicans say, contending Democratic ''judicial obstructionism" led to a variety of GOP victories and Daschle's downfall on Election Day. The not-so-subtle message: Let conservatives have their way when it comes to judicial picks, or you too will face the wrath of voters.

But Senate Democrats, though diminished in number by four, see no link between the election losses and Bush's judicial nominees and they plan to stand their ground. More filibusters should be expected if Bush tries to put someone too conservative on the Supreme Court or other top courts. With Chief Justice William H. Rehnquist battling thyroid cancer, Bush could make an appointment soon.

Based on raw numbers, Democrats still can make a filibuster stick because it takes 60 votes to overcome one. The new Senate will have 55 Republicans, 44 Democrats, and a Democrat-leaning Independent. The GOP would have to persuade five Democrats to defect on a filibuster to break it.

During Bush's first term, Democrats successfully blocked 10 of his judicial nominees to US appeals courts, the nation's second-highest courts. At the same time, the Senate confirmed 203 of Bush's court appointments.

Not surprisingly, it is the 10 blocked nominations that peeve the Republicans.

''I'm wondering if they have the heart to try it again," said Senator John Cornyn, Republican of Texas.

Absolutely, said Senator Charles E. Schumer, Democrat of New York, one of the most outspoken senators against what Democrats consider extremist right-wing judicial nominees.

''Everything stays the same, and the ball's in the president's court," said Schumer, who was overwhelmingly reelected to another six-year term. ''I don't see the Democrats backing down on this issue."

David Keene, chairman of the American Conservative Union, said the election's ''resoundingly conservative results should make the uber-liberal organizations on the left pause and reconsider their intentions to quash the appointment of any and all conservative judges to federal bench."

Democratic senators are unmoved by such talk, as are organizations that share their views.

''If they think they're going to persuade the Democrats to begin to rubber-stamp their judicial nominees, they've got another thing coming," said Nan Aron, president of the liberal Alliance for Justice.

Most people expect at least one Supreme Court vacancy in Bush's second term. Aside from Rehnquist's illness, all but one of the nine Supreme Court justices are older than 65, and several have had health problems.

If Democrats do filibuster, it would not be the first time that tactic has been used against a Supreme Court nominee. Supreme Court Justice Abe Fortas's nomination for chief justice by President Lyndon B. Johnson was filibustered in the Senate in 1968, and Fortas later withdrew his nomination. Aside from the Supreme Court, there are 28 empty seats and 24 upcoming vacancies because of retirements and promotions among the 857 US district and appeals court seats, and the president has 24 nominees pending for the positions.

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