The first of President George Bush’s seemingly stuck judicial nominees has been approved by the Senate — the first judge given the green light under the compromise Senate moderates struck to head off a divisive battle over eliminating the filibuster on judicial nominees.
The judge: Texan Priscilla Owen. Where she’s going: 5th U.S. Circuit Court of Appeals in New Orleans. The vote: largely party line, 56 to 43.
What’s significant, and what should you watch?
- This was the first of Bush’s stalled judicial picks to sail through under the compromise struck by Democratic and Republican moderates — a compromise hard-core partisans on both sides consider something of a sell out.
- Under the plan Democrats retain the right to filibuster “under extraordinary circumstances.” That suggests that Owen, first nominated by Bush four years ago, doesn’t fall into that category. So does she become the new yardstick? In politics — as in law — precedent matters.
- Will President George Bush and Majority Leader Bill Frist work with this compromise? Or will they ASAP attempt to polarize the atmosphere and force a situation where the Democrats have to filibuster, the Republicans get into a debate as to whether it’s a case that fits under the definition — and then go for the nuclear option?
The Washington Post notes:
The vote was made possible by a compromise that averted a possible shutdown of the Senate….Under the deal, Democrats retain the ability to block future judicial nominees “under extraordinary circumstances,” which could shape Bush’s first nomination to the Supreme Court, expected later this year.
The bottom line is that this was the first instance of this compromise working and, in the end, Bush got a key nominee, even though, as Bloomberg points out, the Democrats were not happy:
Democrats made no commitment on blocking two other Bush nominees,
William G. Myers III and Henry Saad, and pledged in the future to use the filibuster only in “extraordinary circumstances,” including for any Supreme Court vacancy. The agreement is meant to last until the congressional session is completed at the end of 2006.
Democrats who had blocked a vote on Owen called her views opposing abortion rights and favoring corporate power extreme.
“We’re not going to solve this problem if the president stands like Zeus on Mount Olympus hurling judicial thunderbolts into the Senate,” Senator Charles Schumer, a New York Democrat, said during today’s floor debate.
And that is a key issue. When it comes time for a Supreme Court nominee will Bush pick a moderate (unlikely), a respected conservative, or go for one of the most polarizing conservative nominees he can possibly find — one who may actually agree with other possible choices in large part or even completely. There are a slew of qualified conservative candidates out there.
We’ll likely be tipped way ahead of any Supreme Court justice nomination by how the White House and Frist work with this new compromise. Do they let it take its course or actively work to create conditions to dismember it?
UPDATE: But, even as the confirmation seemingly showed the moderates’ compromise as putting the Senate back in productive business again, there were signs of how fragile this agreement is — and that it could easily fall apart. Some details from a Fox News/AP report underscore not just the fragility but the fact that there are political forces on both sides that want to kill any agreement. Here are a few:
–Bush’s continued comments about wanting an up and down vote on all of his nominees. This consistent, on-message mantra is sending a signal and truly suggests the compromise means this crisis is merely in transmission:
After the Owen vote, Bush said his nominee would bring “a wealth of experience and expertise” to the bench and said his other picks should be voted on. “I urge the Senate to build on this progress and provide my judicial nominees the up-or-down votes they deserve,” the president said in a statement.
–Behind the scenes manuevers:
Meanwhile, behind the scenes, Republicans are asking Democrats for unanimous consent to bring up the confirmation of Janice Rogers Brown (search) for the U.S. Court of Appeals for the District of Columbia Circuit by the end of the week. Sources told FOX News that lawmakers are close to an agreement on that.
Republicans also want a deal on William Pryor Jr. (search) for the 11th Circuit Court of Appeals so that his confirmation vote can be held next week. That would clear the three most controversial nominees for confirmation.
An aide in Reid’s office told FOX News that Democrats intend to filibuster Myers’ nomination; that could bring the entire filibuster agreement reached earlier this week to its knees. Some Republicans have said if judges like Myers are filibustered as an obstructionist ploy, they would throw their weight behind bringing in the nuclear option.
–Frist vows to revisit the issue:”The majority leader has said however, that he will not hesitate in the future to use the so-called “nuclear option,” which would put an end to judicial filibustering and force an up-or-down vote on the nominees.” Virginia Republican Senator John Warner also confirms that the issue isn’t gone — it’s just defused and it can be fused again.
–Republican Senator Orin Hatch says this is just a “truce” and “not a treaty yet.”
–Displeasure on the Democratic side as well:”On the Democratic side, the House Congressional Black Caucus issued a statement saying it opposed a deal “that trades judges who oppose our civil rights for a temporary filibuster cease-fire.”
So we know that the moderate defused the issue and temporarily took control out of the hands of the two stalemated party leaders. And we know that Owens passed.
What we also know is that there are people on both sides who not only didn’t like this compromise but want it to fail and be expected to press for conditions where one side will totally win on filibusters and one side will totally lose. If certain things happen, the predictable newsmagazine covers touting the triumph of the moderates could have a notably short shelf-life.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.