Bush’s Dilemma
Will fighting abroad mean losing at home?

September 19, 2001 11:50 a.m.

ant to see how last week's terrorist attacks are affecting everything in Washington? Just look at the Bush administration's ongoing struggle to place judges on the federal bench.

According to the Justice Department, there are 108 vacancies on the federal courts. There are 53 Bush judicial nominations pending before the Senate. And four judges have actually been confirmed. Republicans had hoped — perhaps naively — that slow-moving Senate Judiciary Committee chairman Patrick Leahy might allow a significant number of nominations to go through this fall. But now, with members of Congress focused on issues like antiterrorism, airline bailouts, and economic stimulus — and anxious to finish their work and head home — there's little chance that will happen.

The rush to adjourn might deprive Republicans of a key weapon in the battle over judges. During the Clinton years, when Senate Democrats were in the minority, they were adept at holding up appropriations bills while demanding that Republicans approve the president's judicial nominations. It usually worked. This fall, minority Republicans had been planning to do the same thing as Congress worked its way through the 13 spending bills that must be passed to keep government departments running. But now, with all the other issues to consider, there is talk that, rather than debate each bill separately, Congress might combine all or most of them into an omnibus spending measure. That would mean greatly reduced bargaining power for Republicans. "If that happens, we lose leverage," says one aide. "It's really bad."

Further complicating matters is the White House's understandable focus on the terrorist crisis. The counsel's office, which handles judicial nominations, has new legal issues — war powers, assassinations, etc. — to consider as the president decides what actions to take against world terrorist networks. That will inevitably mean less emphasis on judges.

It's an enormous change from just two weeks ago. On September 6, at a meeting between Bush and congressional leaders, Republicans urged the president to take a get-tough stance with Leahy on the issue of judges. "If this continues to get worse, the White House is going to have to use the bully pulpit to protect their nominees," Republican Sen. Jeff Sessions told Roll Call, the Capitol Hill newspaper. That was then. Now, the bully pulpit is reserved for the war on terrorism, and judges will have to wait.

The situation underscores a new dilemma for Bush. Devoting every ounce of his administration's energy to the antiterrorism campaign might be the right thing to do, but it might also mean losing control of important parts of his domestic agenda. Even as his popularity rises to new heights, Bush might find himself with less influence on critical issues like judges. When the president said, the day after the attacks, that there would be no "business as usual," he was right — more so than anyone could have known.