- The Washington Times - Monday, May 24, 2004

Some conservatives are getting angrier as they ponder the deal the White House struck with Senate Democrats to dislodge 25 of President Bush’s judicial nominees.

“George Bush has once again managed the nearly impossible physical feat of handing his head to the Democrats — again,” conservative radio host Neal Boortz said. “He gave up, ran for the hills, threw in the towel, bailed.”

But, “tragically,” said the nationally syndicated host, “Mr. Bush didn’t really get anything of real value for his craven surrender. He gave Democrats almost a complete victory.”

Under the deal, Mr. Bush agreed not to make any more recess appointments — the president’s constitutional authority to temporarily place a nominee on the bench during a recess without Senate approval — in exchange for Democrats allowing a final vote on 25 of the more than 32 judicial nominees held up in the Senate.

The arrangement — finalized last week in a meeting among Senate Majority Leader Bill Frist, Tennessee Republican, Minority Leader Tom Daschle, South Dakota Democrat, and White House Chief of Staff Andrew H. Card Jr. — comes after Mr. Bush gave recess appointments to two nominees to U.S. courts of appeals.

Judge Charles W. Pickering Sr., put on the 5th U.S. Circuit Court of Appeals, had waited more than two years, and Judge William H. Pryor, placed on the 11th Circuit, had waited nearly a year without being voted on. Both were being filibustered by a group of 45 Senate Democrats.

Many Republicans, especially conservative activists who lobby for Mr. Bush’s nominees, viewed the agreement as Mr. Bush’s surrendering constitutional authority in return for Democratic senators simply doing what they’re required to do.

White House press secretary Scott McClellan called it “an important step forward to getting these judges in place.”

“There are some 25 judicial nominees, who are highly respected and well-qualified, who will now be given an up-or-down vote,” he said. “And we are very confident that they will be approved by the Senate.”

If conservatives had any doubt about who wound up with the short end of the stick, it was confirmed for them by the gloating from across the aisle.

Asked about Mr. Bush’s promise to make no more recess appointments this term, Sen. Charles E. Schumer, New York Democrat, said: “I think it shows that even the president knew he was wrong on this. I think the precedence of having the White House admit they were wrong is very important.”

Jeff Mazzella, director of the normally pro-Bush Center for Individual Freedom, lamented the White House deal.

“Unfortunately, this deal may embolden Daschle and his cohorts to continue their obstruction and allow them to deflect attention from the unfair treatment of the president’s judicial nominees,” he said.

“It’s unfortunate that in order to ensure the efficient administration of justice, the White House must negotiate with the Senate minority in order for that body to fulfill its constitutional obligations,” he said.

Senate Judiciary Committee Chairman Orrin G. Hatch, Utah Republican, dismissed the idea that Republicans should just try ramming judges through without attempts at negotiation.

“Those kinds of arguments are beneath the dignity of comment,” he said. “We were not going to get any confirmed.

“The president was not going to make any more recess appointments anyway,” Mr. Hatch said. “It was an absolute ‘gimme.’”

Particularly galling to many conservatives is that not included in those nominees guaranteed a vote on final confirmation are any of the six that Democrats have been actively filibustering.

Sean Rushton, director of the conservative judicial watchdog group Committee for Justice, said, “At this point, the deal is beside the point.

“What matters now is the action taken in the Judiciary Committee to move the nine remaining circuit court nominees to the floor,” he said. “Republicans can win this issue if they bring the nominees to the floor with extended debate.”

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