- The Washington Times - Wednesday, June 2, 2004

The Bush administration and Senate leaders recently broke the deadlock over stalled judicial nominations. While the compromise with Senate Democrats may have irked certain conservatives, they should probe a little deeper into the motivations underlying the temporary cease-fire before issuing any denunciations.

This recent example of White House “judicial activism” is not a concession: It’s a short-term tactical victory, with long-term implications and lessons for conservatives. If managed properly, it will secure more conservative jurists to lifetime appointments, while holding the Democrats’ feet to the fire on the obstructionist issue. It’s evidence that tough tactics work and provides a glimpse about how they should be used again in the future.

The agreement removes potential Democratic filibusters and grants floor votes on 25 of the president’s judicial nominees, essentially guaranteeing lifetime terms for these judges. In exchange, the president agreed to not exercise his recess appointment authority, only through the end of the year and only on judicial nominations. (A recess appointment allows the president to make temporary judicial or executive branch appointments without the advice and consent of the Senate. These appointees can serve until the end of the next session of Congress.)

Understanding the context of this agreement is critical. For the past two years, the White House, along with Senate Republicans, engaged in a hand-to-hand scrum with the Democratsoverjudicial nominations. First the Democrats blocked confirmation of a number of well-respected Circuit Court nominees, and Republicans responded, trying to force floor votes. Democrats invoked the unprecedented technique of filibustering, denying nominees an up or down vote by the full Senate unless 60 votes could be garnered to invoke cloture (cut off debate and vote). According to the Senate Republican Policy Committee, “The Senate logged more cloture votes on judicial nominations during the 108th Congress than through all previous Congresses combined.”

Earlier this year, the White House countered Democrat obstruction by recess appointing two stalled judicial nominees, Charles Pickering and William Pryor, after it was clear both had majority support in the Senate but not the 60 votes to overcome a Democrat filibuster. Democrats then responded in March 2004, saying they would “shut down” the entire confirmation process, blocking any votes on judicial nominees. This latest move in the judicial chess match carried significant risks for Democrats. First, it reinforced their obstructionist label, which clearly concerns Sen. Tom Daschle, involved in the toughest re-election fight of his career. Additionally, the left viewedtheWhite House as “armed and dangerous” on recess appointments and worried President Bush might act again. Despite the Democrats’ bogus arguments that the president overstepped his authority by recess appointing judges, the Congressional Research Services notes that this procedure has been used 309 times, under Article II, Section 2, Paragraph 3 of the Constitution. Rumors spread through the Capitol that the president might pull the trigger again over this past Memorial Day recess.

These fears brought Mr. Daschle to the table. Yet he was missing one critical piece of information. The White House was done making recess judicial appointments for the year. Temporary slots are inferior to life terms and for institutional reasons are not that popular even with Republicans,cross-pressuredbetween their party affinity with the president and their desire to protect the prerogatives of the Senate as a co-equal branch of government. (Senate history buffs know original versions of the Constitution vested all judicial appointment power with the Senate. It was not until the near final draft that the Framers adopted shared power of presidential appointment with Senate advice and consent.) Yet without knowing this, Democrats decided to deal.

The results are clear. The president will get 25 judges confirmed to lifetime appointments. Senate Republicans can still force the Democrats to filibuster the handful of Circuit Court judges not part of the agreement. Republican aides say Majority Leader Bill Frist will do just that later this year. And the White House agreed to do something it was going to do anyway.

It’s not a perfect solution, but it’s far better than a “craven capitulation,” as it has been described by some. The White House and Senate Republicans need to continue to push for the handful of Circuit Court nominees not covered in the agreement, forcing the Democrats to maintain their unprecedented parliamentary tactics. And, assuming the president is re-elected, the recess appointment should be threatened and used again as a proven antidote to Democrat obstructionism.

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