- The Washington Times - Friday, May 27, 2005

Just where did the Gang of 14 get their list of “pending and future judicial nominations in the 109th Congress,” to which they referred in the opening paragraph of their “Memorandum of Understanding on Judicial Nominations” on Monday evening? What criteria did they use to determine if a nomination was “pending”? If a nominee did not meet their “pending” criteria, was he or she then automatically placed in the category of “future judicial nominations”?

The criteria matter because there appears to be no discernible or consistent pattern for including a prospective judge in the “pending” category. The criteria also matter because there is every indication that the criteria’s evidently intentional ambiguity was exploited in a bipartisan way by the Gang of 14 in order to camouflage the fact that the seven Democrats cleaned the political clocks of their seven Republican colleagues.

As the self-appointed trustees of Senate tradition, the senators conspired on Monday to torpedo the nuclear option, which would have banned all judicial filibusters. One explanation for what appears to be an overwhelming Democratic victory within can be found in the fact that, notwithstanding the senators’ ostensibly even partisan make-up, the steadfastly anti-nuclear-option faction actually comprised 11 Republicans, not seven.

In a subsection of the memo —”Part I: Commitment on Pending Judicial Nominations” — the senators specifically refer to five nominees. For three of these five so-called “pending” nominees (Priscilla Owen, Janice Rogers Brown and William Pryor), the gang committed themselves to permitting an up-or-down confirmation vote on the Senate floor. For the other two (William Myers III and Henry Saad) of the five “pending” nominees, the gang made no such commitment.

Again, what were the criteria? The delimiting criterion could not have been the fact that a “pending” nominee was simply someone who had been nominated by Mr. Bush during the 109th Congress. In fact, there have been 12 circuit-court nominations so far. Nor could the delimiting criterion be the fact that a “pending” nominee was someone whom the Judiciary Committee had already approved. Mr. Saad has not yet been approved by the committee. And Thomas Griffith, whom the committee approved 14-4 on April 14, was not considered to be a “pending” nominee.

Why did the seven Republicans ignore so many nominees who have been put forth this year by Mr. Bush? They are de facto “pending” nominees, are they not? In some cases, it is because “an unwritten aspect of the pact” called for Brett Kavanaugh and William J. Haynes II to be tossed overboard with Mr. Myers and Mr. Saad. Messrs. Kavanaugh and Haynes were nominated during the 108th Congress, would have been filibustered during the 108th by the Democrats if they had reached the floor and were renominated in February.

What about Terrence Boyle, who was first nominated in May 2001, renominated in 2003 and renominated in February? What about Richard Griffin and David McKeague, who were filibustered during the 108th and renominated this year? What about Susan Bieke Neilson? Renominated in 2005, she was approved by committee in October 2004 and would have been filibustered if she reached the floor.

Here is the real criterion: The 14 senators, including the seven Republicans, had to find the smallest number of nominees — three (Justice Brown, Justice Owen and Judge Pryor) — that would be guaranteed an up-or-down vote, on the one hand, and that would still exceed the number (two) that specifically would not be given such a vote, on the other hand.

Here is the scorecard. Democrats filibustered 10 appellate-court nominees during the 108th and would have filibustered another half dozen, if given the chance. Only seven of the filibustered 10 were renominated, giving the Democrats a victory over the other three. Only three of those seven are guaranteed an up-or-down vote by the Gang of 14. By our count, that’s three for 16. Republican batting average: .187.

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