- The Washington Times - Monday, May 8, 2006

Five years ago today, in the spirit of bipartisanship, the nine appellate-court nominations in President Bush’s first batch of circuit-court appointments included two judges previously nominated by Bill Clinton. The next month Democrats gained control of the Senate after Vermont Republican James Jeffords became an independent, and the spirit of judicial bipartisanship effectively ended right there.

Through 2002, for example, the Democrat-controlled Judiciary Committee never voted on the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals, where he would have become the first Hispanic on what is widely regarded as the nation’s second-most-influential court. After Republicans regained a Senate majority in the 2002 elections, Democrats repeatedly filibustered Mr. Estrada’s renomination in 2003.

Today, Brett Kavanaugh, whom Mr. Bush first nominated to the D.C. appellate court in July 2003, will appear for the second time before the Senate Judiciary Committee. After his first hearing during the previous Congress, Democrats, who filibustered an unprecedented 10 circuit-court nominees during 2003 and 2004, pledged to filibuster his nomination as well. So far, Mr. Kavanaugh has not been considered by the whole Senate.

Nor was Mr. Kavanaugh’s status resolved last year by the “Gang of 14” — the group of seven Republican and seven Democratic senators who prevented Senate Majority Leader Bill Frist from invoking the so-called nuclear option. Proposed as a change in Senate rules, the nuclear option would have prohibited filibustering circuit-court nominees and effectively guaranteed their confirmation if a majority vote could be mustered. Using their own discretion, members of the “Gang of 14,” which formally agreed to permit three of the 10 filibustered nominations to move forward and precluded the advance of two others, said they would only filibuster future nominees under “extraordinary circumstances.”

Senate Minority Leader Harry Reid said last week that it was “possible” Democrats would mount a filibuster against the ostensibly unqualified 41-year-old Mr. Kavanaugh, a graduate of Yale Law School and longtime Federalist Society member who clerked for Supreme Court Justice Anthony Kennedy and two circuit court judges; argued cases before the Supreme Court and circuit courts of appeal; worked in the Office of U.S. Solicitor General; served as an associate White House counsel; and currently is an assistant to the president. What particularly irks some Democrats was Mr. Kavanaugh’s tour of duty as Ken Starr’s deputy during the investigations that led to The Clinton impeachment.

After Senate Judiciary Committee Chairman Arlen Specter received a letter from the seven Democratic members of the “Gang of 14” promising not to support a filibuster against Mr. Kavanaugh’s nomination if he appeared before the committee a second time, the chairman scheduled today’s hearing. A committee vote could come Thursday. Before the Memorial Day recess, after nearly three long years since he was first nominated, Mr. Kavanaugh should finally get his long-deserved vote on the Senate floor.

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