Special Report - Can You Hear Me Now?

Since 1789, the House of Representatives has had no formal role in the confirmation of federal judges, and nobody has suggested changing the Constitution on this point. But that won't prevent House members of both parties from seeking opportunities to take part in the conflict that will preoccupy Washington until the Senate confirms a new Supreme Court justice.

Rep. Dan Lungren, R-Calif., a member of the House Judiciary Committee who served eight years as attorney general in his home state, is eager to offer his views about judicial nominees. "We can offer informed judgments that are at least as relevant as those of Ralph Neas," Lungren contended in a July 5 interview, referring to the well-known liberal leader of People for the American Way.

Lungren noted that he recently put in his two cents on President Bush's controversial nomination of Janice Rogers Brown. Back in Sacramento, Lungren had served on panels that approved Brown's selection to two state court judgeships. Before the Senate approved Brown's federal appeals court nomination last month, Lungren said, he held a few private conversations with senators about her, and he attended a press conference on her behalf with Senate Judiciary Committee Chairman Arlen Specter, R-Pa.

"Senators wanted more information about nominees.... I was disappointed that more House Republicans were not speaking out when [the nominees'] reputations were being besmirched by other senators," Lungren said. He conceded, however, that his appearance with Specter was "anti-climactic" and received little press coverage because it came the day after the bipartisan deal was reached to avoid a showdown on the so-called nuclear option.

Many House members may find it problematic to gain attention during the high-profile Senate battle over the Supreme Court nomination. Yet a select few are likely to make news whenever they open their mouths.

Take House Majority Leader Tom DeLay, R-Texas, who has been among the most outspoken critics of the federal judiciary. DeLay seemed certain that he'd play a role in the event of a Supreme Court vacancy when National Journal asked him about the issue three days before Sandra Day O'Connor's retirement announcement on July 1. "We can express ourselves," DeLay said of himself and his House Republican colleagues, whom he said would support Bush in his commitment to "nominate people who will stick to the Constitution."

The White House and some Senate Republicans may be wary that support from DeLay could be a mixed blessing, given the legal and ethical questions swirling around the House majority leader. For DeLay and other House members, influencing the outcome of a Supreme Court nomination, while still paying due deference to the Senate's hallowed prerogatives, will pose a tricky balancing act.

"House members can play a useful role in the messaging," said Manuel Miranda, a former aide to Senate Majority Leader Bill Frist, R-Tenn., who now heads the Third Branch Conference, a coalition pushing for conservative judges. "But [such messaging] needs to be informed. There could be a problem with heated language ... that causes a backlash."

When Miranda was an aide to the Senate Judiciary Committee early in Bush's first term, he prepared a plan called the "House project" in which he outlined potential opportunities for House GOP members to assist in getting judges confirmed. "They can be surrogates with local groups. They can be media spokesmen. They can use this moment as an opportunity to educate the public and point out issues that are before the judiciary," Miranda said.

Within an hour after O'Connor's resignation announcement, aides to the House GOP Conference e-mailed notices to reporters that "House Republicans are available to discuss the retirement of O'Connor and the future of the Supreme Court." Although it's unclear whether they were following a specific game plan prepared by Miranda or others, several House Republicans issued statements that morning praising O'Connor and her legacy.

Some put out more-pointed messages. "I also want to take this opportunity to urge the Senate to give whomever the president nominates a fair hearing and an up-or-down vote on the Senate floor. The nation deserves more than politicizing this upcoming nomination," said Rep. Melissa Hart, R-Pa.

The Supreme Court vacancy comes as House Republicans -- and some House Democrats -- have sharply criticized the judiciary's handling of two issues that weigh heavily with conservatives: The refusal of Florida and federal courts earlier this year to intervene in reattaching a feeding tube to sustain brain-damaged Terri Schiavo, and the Supreme Court's 5-4 decision last month that sanctioned the use of eminent domain by New London, Conn., officials over the heated objections of local property owners.

DeLay outspokenly criticized the judges in each case, and he spearheaded House action on both. On the eminent-domain case, Kelo v. City of New London, DeLay at a June 30 press conference called it a "horrible decision," adding, "The Supreme Court voted last week to undo private property rights, and to empower governments to kick people out of their homes and give them to someone else because they feel like it."

Later that day, the House backed a nonbinding resolution, 365-33, "expressing the grave disapproval of the House" of the Supreme Court's Kelo opinion. The House also voted 231-189 to tuck an amendment into an appropriations bill barring the use of funds to enforce the court decision.

Leading House liberals also criticized the Kelo decision, citing opposition by prominent civil-rights and senior-citizen groups. "Eminent domain has been used historically to target the poor, people of color, and the elderly," said Rep. John Conyers, D-Mich., the ranking member on the Judiciary Committee. Although he co-sponsored the resolution, Conyers voiced concern that some of its language "gratuitously overtargets the judicial branch."

For her part, House Minority Leader Nancy Pelosi, D-Calif., opposed the appropriations rider. She said that regardless of a lawmaker's view about a particular ruling, "it is not appropriate for the Congress to say we're going to withhold funds ... from enforcing a decision of the Supreme Court."

Despite such misgivings, Pelosi and fellow Democrats can also be expected to seek to exert influence in the upcoming fight over the Supreme Court nominee. "The stakes are so big on a Supreme Court nomination that having a group of House members will carry some weight," said a veteran House Democratic aide who previously served as a Senate staffer.

The aide acknowledged, however, that the views of most House members will carry less heft than those of interest groups such as the NAACP or the American Civil Liberties Union, which have large memberships and more experience in earlier Court fights. House Democrats, particularly members of the Congressional Black Caucus, may be most useful in seeking to influence senators from their home states, or those with whom they are otherwise familiar, the aide added.

The growth of the Internet and the huge increases in lobbying resources since earlier Supreme Court showdowns have created "many more stages for advocacy," the aide noted. But he worried that, "with a 30-ring circus, the media may focus on the 'inside baseball,' rather than on the substance," which could complicate the Democrats' burden of persuading the public that the Senate should reject a Bush nominee.

House Republicans enjoy an advantage over their counterparts in the minority because they tightly control their chamber's floor activity, and could stage debates designed to score points in the Supreme Court fight. "Surrogates could use the House floor to raise issues," Miranda said, adding that this tactic could "force the Left to deploy resources" in the House, thus distracting Democrats and their allies from the main battle in the Senate.

Greg Crist, a former House Republican Conference spokesman who is now vice president of communications at Dutko Worldwide, noted that GOP leaders have been successful in encouraging House-Senate coordination this year, a strategy that could pay off during the Court fight.

As the Senate is consumed by the Court showdown, House Republicans will play another important role: attempting to keep the focus on other parts of the GOP agenda. Although the Senate will likely spend at least several weeks on Supreme Court nomination hearings and floor debate, that won't prevent the House from quietly proceeding on its own schedule. Still, there runs the risk that legislation will pile up on the Senate's doorstep.

More than six months into the 109th Congress, only two major bills have been enacted -- curbs on class-action lawsuits and reforms of the nation's bankruptcy laws -- along with another supplemental funding bill for the Iraq war. Two big-ticket items, the energy bill and the highway bill, are pending in conference committee. The Senate just passed the Central American Free Trade Agreement, and the House is expected to take it up in July. And the elephant in the room, of course, is Social Security reform.

The fastest-approaching legislative deadline is September 30, the date by which Congress is supposed to act on the "must-pass" fiscal 2006 appropriations bills. At this point, the House has passed all of its appropriations bills, but the Senate has passed only three. Congress must also act this fall on sweeping budget reconciliation legislation -- the first such effort since 1997 to try to curb spending on entitlement programs -- but committee action has barely begun in either chamber.

To be sure, it would hardly be unprecedented for Congress to miss those deadlines. The looming Supreme Court debate may mean that House and

Senate GOP leaders quicken the pace on their pending legislative business during the next three weeks, before the August recess. But, in any event, a protracted Court battle could dash any hopes for an early, pre-Thanksgiving adjournment.