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Feinstein
Often Crosses Party Lines
on Senate Judiciary Committee
By
Bob Egelko, San Francisco Chronicle Staff Writer
Monday,
November 19, 2007
Michael
Mukasey became attorney general with a big assist from Sen. Dianne
Feinstein, who voted for his confirmation despite qualms about
his position on whether waterboarding constitutes torture. Leslie
Southwick became a federal appeals court judge because Feinstein
backed him over furious opposition from civil rights and gay rights
advocates.
Yet
Feinstein was also instrumental in thwarting several of President
Bush's most conservative judicial nominations, including two candidates
for the Ninth U.S. Circuit Court of Appeals in San Francisco:
Carolyn Kuhl, who as a Justice Department lawyer endorsed the
repeal of the Roe vs. Wade abortion ruling, and William Myers,
a former mining and cattle industry lobbyist opposed by environmentalists.
The
California Democrat has served on the Senate Judiciary Committee
since she became a senator in 1992. Since 2001, the committee
has been the main battleground for Bush's efforts to move the
federal judiciary further to the right - and Feinstein has been
the Democrat most likely to cross party lines. Her recent votes,
in particular, have alienated some longtime allies.
"She
has been critically important," said Carl Tobias, a University
of Richmond (Va.) law professor. "When it's close, she's
the person the Republicans look to."
Feinstein
is "not one to simply take the direction or pressure from
even very important and very responsible outside groups, including
those in the civil rights community," said Douglas Kmiec,
a Pepperdine University law professor and former Justice Department
official under Presidents Ronald Reagan and George H.W. Bush.
"She has her own mind."
Feinstein
is usually described as a moderate, and her record varies from
issue to issue. She voted to authorize the invasion of Iraq in
2003, supported Bush's initial tax cuts in 2001 and Republican-sponsored
restrictions on class-action lawsuits in 2005, and often crosses
party lines on immigration and crime.
She
is also a strong supporter of women's rights, particularly the
right to abortion, and a passionate advocate of gun control, an
issue with personal meaning since she became mayor of San Francisco
in 1978 after the assassinations of Mayor George Moscone and Supervisor
Harvey Milk.
On
the Judiciary Committee, which has a 10-9 Democratic majority,
Feinstein - the panel's only woman, and one of its few nonlawyers
- is generally the most conservative Democrat. Lobbyists on both
sides of controversial nominations for judgeships or executive
offices in the committee's bailiwick, such as attorney general,
concentrate on winning her vote.
When
Democrats have controlled the Senate, as in 2001-02 and again
this year, nominations that failed to secure Feinstein's vote
have died in committee. During Republican control, Feinstein's
opposition to a nominee was often the key to a successful Democratic
filibuster on the Senate floor - at least until a group of Democrats
agreed to curb the use of the filibuster in 2005 after Republicans
threatened to outlaw the practice.
Feinstein
was not part of the 2005 agreement, which limited her influence
and Democrats' power over appointments. But last year's elections
returned Democrats to the majority and Feinstein to the spotlight.
The
first test came in August, when the newly configured Judiciary
Committee took up Southwick's appointment to the Fifth U.S. Circuit
Court of Appeals in New Orleans, a judgeship that had been vacant
for years while Democrats blocked two earlier Bush nominees. This
time, Feinstein cast the tiebreaking vote that led to his confirmation.
The
debate centered on two of Southwick's cases in a Mississippi state
court. In one, he joined a ruling that reinstated a white state
employee who had been fired for calling a black co-worker a racist
epithet. In the other, he helped uphold a lower-court decision
to remove an 8-year-old child from her bisexual mother, and signed
another judge's opinion that described homosexuality as a choice
that carries consequences.
Feinstein
said she had met with Southwick and concluded he had made some
mistakes but was not a bigot. She noted that he had received the
American Bar Association's highest rating for his nomination and
had taken leave from his court in 2004 to serve with the Judge
Advocate General's Corps in Iraq.
Veteran
civil rights lawyer Eva Paterson of San Francisco, who
has known Feinstein since the 1970s, called the vote a "profound
betrayal."
Paterson
is president of the Equal Justice Society, an advocacy
organization that honored Feinstein in December 2005 for what
it described as acts of courage, including her votes against confirmation
of Chief Justice John Roberts and Attorneys General John Ashcroft
and Alberto Gonzales.
With
her votes on Southwick, and more recently on Mukasey, Paterson
said, Feinstein is no longer an ally, and is now "giving
the green light to Bush."
Not
so, Feinstein said in comments released by her office.
"I
have never believed that people elected me to represent this big
state just to go and be a rubber stamp," she said. At the
same time, she said, "the president is owed some consideration
to get his own team, provided that team is qualified."
That
was the approach Feinstein displayed Nov. 6, when she cast one
of two Democratic votes in the Judiciary Committee to confirm
Mukasey, a former federal judge picked by Bush to succeed Gonzales.
Democratic
opposition focused on Mukasey's expansive view of presidential
power and his refusal to classify waterboarding, the simulated-drowning
technique reportedly practiced by CIA interrogators, as either
torture or illegal conduct. Feinstein and Sen. Chuck Schumer,
D-N.Y., who also voted for Mukasey, said he had assured them he
would enforce a ban on waterboarding if it was enacted into law.
Feinstein
also said she was confident Mukasey would restore leadership and
independence that the Justice Department had lost under Gonzales.
The
recent confirmations may reflect a shift for Feinstein, who with
occasional exceptions joined fellow committee Democrats on judicial
votes during the first five years of Bush's presidency.
Her
votes helped sink the appeals court nomination of Kuhl, a Los
Angeles Superior Court judge who as a Justice Department attorney
during the Reagan administration had signed briefs opposing Roe
vs. Wade and favoring tax-exempt status for Bob Jones University,
which banned interracial dating and interracial marriage.
Kuhl
had strong professional credentials, and Feinstein was one of
the last Democrats to back a filibuster against her in November
2003. Judith Schaeffer, legal director of the liberal advocacy
group People for the American Way, said the decisive issue for
Feinstein was Kuhl's dismissal of a privacy suit by a breast cancer
patient who was told to disrobe by her doctor with a drug company
representative in the room.
Feinstein
also helped to block Myers, the former lobbyist and Bush administration
Interior Department lawyer whose Ninth Circuit nomination was
withdrawn by Bush in February. Myers had once compared federal
land use regulation to "the tyrannical actions of King George"
and had earned Feinstein's opposition by describing her 1995 California
Desert Protection Act as an instance of "legislative hubris."
Other
appeals court nominees defeated with Feinstein's help included
William Haynes, the Pentagon general counsel who had helped to
craft the administration's interrogation policies, and Miguel
Estrada, a conservative attorney who angered Democrats by refusing
to discuss his views of legal issues or release memos he had written
as a Justice Department lawyer.
Feinstein
voted against both of Bush's Supreme Court appointees, Roberts
and Samuel Alito, and has led efforts to fend off conservative-led
attempts to split the San Francisco-based Ninth Circuit, the nation's
largest federal appeals court, into two or more smaller courts.
The
senator's spokesman, Scott Gerber, said Feinstein approaches each
nomination on a case-by-case basis, without preconceptions. That's
to her credit, said Pepperdine's Kmiec.
Feinstein
does her homework, accepts qualified nominees with whom she has
disagreements and exemplifies the Senate's self-proclaimed role
as a "deliberative body in a democracy," Kmiec said.
Richmond's
Tobias offered a more strategic assessment of Feinstein's recent
votes, saying she appears to be looking ahead to a Democratic
presidency.
"She's
making a bet that if she works with Republicans now, they'll work
with Democrats later," he said. "We'll see."
E-mail
Bob Egelko at begelko@sfchronicle.com.
This
article appeared on page A - 1 of the San Francisco Chronicle
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