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November 15, 2002 8:30 a.m. Left Out The liberal activists who helped kill Bush judicial nominees now worry about the Republican future.

ust two weeks ago, they had easy access and real influence with the Democrats who controlled the Senate Judiciary Committee. But Thursday, the leaders of liberal interest groups like People for the American Way, the Leadership Conference on Civil Rights, NARAL, and the Alliance for Justice stood in a hallway in the Dirksen Senate Office Building, their faces somber, clearly dispirited by the election that gave control of the Senate to Republicans. They vowed to keep up the fight against Bush judicial nominees but conceded it would be much, much harder with the GOP in charge.

The activists were particularly upset because they had just lost two nomination fights, one of which they had hoped to win. A few minutes earlier, the committee approved the nominations of Dennis Shedd to a place on the Fourth Circuit Court of Appeals and Michael McConnell to the Tenth Circuit. Vermont Democratic Sen. Patrick Leahy, in his last meeting as chairman, pushed both nominations through the committee.

It did not go smoothly or quickly. Rather than simply vote on Shedd, Democrats took the opportunity to bitterly denounce him as unfit to serve on a federal appeals court. Leahy accused Shedd of being insensitive to the needs of people who have filed discrimination suits against their employers in U.S. District Court in South Carolina, where Shedd has been a judge for the last 12 years. Sen. Dianne Feinstein accused Shedd of being insensitive to the needs of African Americans. The Fourth Circuit, Feinstein said, is "a special court" because one third of the people living in the circuit's area are black. The fact that some civil-rights organizations oppose Shedd, Feinstein said, is enough to disqualify him. "It's very hard for me to understand how we should move ahead with an individual who presents a red flag to a substantial part of the constituency he would be serving." Sen. John Edwards joined in, saying Shedd has a "record of not ruling in favor of victims of discrimination." Sen. Richard Durbin said much the same thing.

The Democratic attacks created a tense moment inside the committee room. Did Leahy and his colleagues plan to kill one more Bush nominee before they lose power? It didn't seem possible, since everyone knew that one Democrat, Sen. Joseph Biden, had said publicly he would vote for Shedd. Biden's vote was all the GOP needed to approve Shedd and send his nomination on to the full Senate for confirmation.

Biden never appeared at the hearing, nor did he leave instructions with Leahy about how he intended to vote. Without the votes to kill the nomination, Leahy departed from the usual procedure of asking the clerk to call of the roll of names and have each senator say yes or no. Instead, Leahy called for a voice vote.
All those in favor say aye, Leahy said, and every Republican there said aye. All those opposed say no, he said, and every Democrat there said no.
"The chair rules that the ayes have it," Leahy declared, although anyone listening could see that the ayes did not appear to have it any more than the nos did. The audience began to murmur, wondering exactly what was going on. Apparently Leahy, knowing that in the end Shedd would be approved, decided to lose by a simple voice vote rather than have each senator commit himself to a yes or a no. The record would simply show that Shedd was approved by the committee.
But after Leahy called the vote in favor of Shedd, Democrats began to speak up, asking that their individual votes be recorded as no. By the end, every Democrat — except the absent Biden — went on record opposing Shedd.

It was a surprise for Republicans. They had expected a few Democrats — Charles Schumer, Durbin, Russell Feingold — to oppose Shedd, but they did not expect that the entire Democratic side, other than Biden, would line up against him. What had been billed by some as a gesture of goodwill from Democrats ended instead as a parting shot.

Next, Leahy brought up McConnell's name and announced that he, Leahy, would vote in favor of the nomination. After that, there was no need for any more debate, and McConnell was quickly approved.

In the hallway outside, the liberal lobbyists were sorely disappointed. Shedd has an "abiding hostility to civil rights," said Leadership Conference on Civil Rights chief Wade Henderson. "This is a setback for those committed to civil rights," said Ralph Neas. The vote was "a serious setback," said Kate Michelman.
But what seemed to dismay the liberal lobbyists even more than the Shedd vote was the prospect that they will be on the losing end of more such votes in the future. All tried to emphasize that the election was "not a mandate" for George W. Bush to nominate conservative judges, but all seemed to know that the president is unlikely to change his guiding principles in selecting judicial nominees. And all worried that the results of the election will make their job particularly difficult if, as many believe, one or more Supreme Court justices decides to retire in the next two years. "I hope this is not a harbinger of things to come should a Supreme Court vacancy occur," said Michelman. "We have an uphill battle."