- The Washington Times - Tuesday, May 24, 2005

The arithmetic tells the story. The Democrats won the battle over who gets to shape the federal judiciary.

In both tone and substance of their rhetoric, the Democrats believe they won, and who can argue with them? The Republican leadership is subdued, as befits a losers’ locker room. The Republicans will pay dearly for the events of Monday night, when seven Democratic and seven Republican senators took over the leadership of the Senate, for a long time to come.

Since the Republicans occupy the White House and command what ought to be a solid Senate majority of 55 members, this should have been no contest. But for the sixth and seventh Republican defections, the GOP would have had a rare, even historic, opportunity under the Constitution to nominate and approve, in up-or-down votes, highly qualified judges for the nation’s highest courts. Because John McCain, John Warner, Lincoln Chafee, Lindsey Graham, Susan Collins, Olympia Snowe and Mike DeWine abandoned their leaders in the Senate and snubbed the president, that historic opportunity was lost.

The deal immediately affects five “pending” appellate-court nominees. The agreement would allow floor votes to proceed for three: Priscilla Owen for the 5th Circuit, Janice Rogers Brown for the D.C. Circuit and William Pryor for the 11th Circuit. The deal immediately dooms the nominations of two others, William Myers III for the 9th Circuit and Henry Saad for the 6th Circuit, by permitting the seven Democratic senators to continue their party’s filibusters against them. In addition to these five, Democrats had filibustered five other appellate-court nominees during the 108th Congress, three of whose names were subsequently withdrawn. Democrats threatened to filibuster half a dozen others. The New York Times reports that Democrats identified an unwritten side deal precluding the confirmation of two other nominees — Brett Kavanaugh and William Haynes — who had not been filibustered in the 108th Congress.

The deal stipulates that “future” appellate-court nominations — i.e., any nominee beyond the five specifically named in the agreement — could be filibustered “under extraordinary circumstances.” The Democrats, of course, get to decide which circumstances are “extraordinary.” This is language that defines a sucker deal.

The so-called nuclear option, regardless of the weasel words employed in the deal, is effectively dead: “In light of the spirit and continuing commitments made in this agreement, we commit to oppose rules changes in the 109th Congress.”

Even by the usual gassy standards of Senate rhetoric, the self-congratulations following the rout of the Republicans would gag the legendary Jubiliation T. Cornpone and the denizens of Dogpatch. Sen. Robert Byrd of West Virginia, who is often unable to stifle himself, let himself go in the wake of his party’s triumph: “We have kept it. We have kept the republic.”

Senate Majority Leader Bill Frist had carefully crafted the campaign to adopt a rule to end filibusters with a simple majority vote, guaranteeing every nominee an up-or-down vote. This would have prevented further judicial filibusters. Since 1975, 60 votes have been required to put an end to filibusters of judicial nominations. Trying to put the best face on bad news, Mr. Frist insisted that the deal “has some good news, it has some disappointing news, and [it] will require careful monitoring.” Senate Minority Leader Harry Reid sees only good news: the nuclear option is now “off the table.” He allowed himself a little gloating that the deal sends the message that “abuse of power will not be tolerated, and attempts to trample the Constitution and grab absolute control are over.” This assessment was echoed by Democratic Whip Richard Durbin.

Mitch McConnell, the Republican whip who had calculated that he had the votes for changing the rules, insists that “[A]ll options are still available, with the timing to be determined.” But invoking the “nuclear option” at a later date would require that at least two of the seven Republicans who abandoned the party recant, and embrace their leadership. The momentum for change is gone, and President Bush will now choose his nominees for the courts — including the all-important nominees for the Supreme Court — with extreme caution. He will consider not merely whether his nominees are qualified, but whether they please the Democrats lest they invoke “extraordinary circumstances.” For this, he and the nation can thank Messrs. Warner, McCain, Graham & Co.

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