- The Washington Times - Tuesday, May 18, 2004

President Bush reached a deal with SenateDemocrats yesterday to dislodge 25 of his stalled judicial nominees.

Mr. Bush agreed not to bypass the Senate by using recess appointments to install any more nominees on the federal bench, in exchange for Democrats’ granting final confirmation votes on 25 of his blocked judicial nominees, including five who are nominated to federal appeals courts.

Moments after Senate Majority Leader Bill Frist, Tennessee Republican, and Minority Leader Tom Daschle, South Dakota Democrat, announced the agreement on the Senate floor, the Senate unanimously confirmed Marcia G. Cook to the federal court for the Southern District of Florida, the first of the 25 listed nominees.

Still stranded are the five Circuit Court nominees being filibustered by a group of Democrats. A handful of other nominees opposed by Democrats also are not included in the list of 25.

Among the high-profile nominations not on the list are California Justice Janice Rogers Brown for the D.C. Circuit Court of Appeals and Texas Justice Priscilla Owen to the 5th U.S. Circuit Court of Appeals.

Yesterday’s agreement came after Mr. Frist and Mr. Daschle met with White House Chief of Staff Andrew H. Card Jr., who delivered the promise from Mr. Bush that he would make no more recess appointments.

“In return for the president’s commitment, which Mr. Card has conveyed to us that there will be no further judicial recess appointments for the remainder of his term, we have committed to confirm now 25 of the judicial nominations currently on the executive calendar by the end of June,” Mr. Daschle said. “Some may entail more floor time than others, but there will be a vote on each of the 25 nominations.”

The agreement is a reversal for Republicans, who had argued that Mr. Bush could make no such agreement because it would be an abrogation of his constitutional authority to make recess appointments.

Similar agreements have been made to dislodge nominees stuck in the Senate, but no one involved in the negotiations could recall a sitting president making such a compromise.

Although yesterday’s deal was agreed to by the parties’ leaders, it drew criticism from senators on both sides.

“My concern is, now that the Democrat obstructionists have successfully negotiated in exchange for their hostages, what will stop them from blocking all future nominees,” asked Sen. John Cornyn, Texas Republican and member of the Senate Judiciary Committee. “What will stop future Congresses from employing similar tactics? When does it end?”

The deal also rankled Democrats still smarting over the two blocked nominees who Mr. Bush installed on the federal appeals court, bypassing Senate approval.

Although power to make such recess appointments is clearly spelled out in the Constitution, Democrats argue that it was wrong of Mr. Bush to recess-appoint two nominees who had been so publicly and actively opposed by 45 Democrats in the Senate.

Sen. Edward M. Kennedy, Massachusetts Democrat, said yesterday that although he welcomes the deal, it “doesn’t change the fact that the two recess appointments President Bush has made are an affront to the constitutional role of the Senate and totally inappropriate.”

Yesterday’s agreement also sets the stage for what could be an embarrassing defeat for Mr. Bush down the line: the first defeat by the full Senate of one of his nominees.

Among the nominees Democrats are allowing to be voted on is J. Leon Holmes, nominated to the federal bench for the Eastern District of Arkansas. Although he has support from his home state’s two Democratic senators, Mr. Holmes has been harshly criticized for religious writings in which he said women belong in roles subservient to men.

This criticism is shared by several Senate Republicans, including Sens. Arlen Specter of Pennsylvania, Lincoln Chafee of Rhode Island, and Olympia J. Snowe and Susan Collins of Maine.

One nominee whose name does not appear on the list slated for a final confirmation vote is Michigan Judge Henry W. Saad, nominated to the 6th U.S. Circuit Court of Appeals.

Sen. Orrin G. Hatch has postponed the committee hearing on his nomination 19 times while he negotiates with Sen. Carl Levin, Michigan Democrat, over Judge Saad and three other Bush nominees from Michigan. Mr. Levin remains angry that a a cousin’s wife wasn’t confirmed to that same court when President Clinton was in office.

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