Doubts, Filibusters, and Schumer’s Wacky Idea
A bad day for the GOP on the judicial front.


Byron York

It’s been a day of turmoil and, occasionally, farce in the ongoing battle between the White House and Senate Democrats over the president’s judicial nominations. In the turmoil category is the Senate Judiciary Committee’s vote on the nomination of Leon Holmes to a seat on the U.S. District Court in Arkansas. When the committee met this morning, it changed its normal voting procedure out of fears that one or more Republicans might vote against Holmes.

So far no committee Republican has ever voted against a Bush judicial nominee.

Holmes has come under fire from Democrats for his strong pro-life views, particularly statements he made while president of the group Arkansas Right to Life. Some Republicans are said to share some of those concerns.

At this morning’s meeting, chairman Orrin Hatch asked members to vote to send Holmes’ nomination to the full Senate with no recommendation. Normally, the committee votes to send a candidate to the full Senate with a favorable recommendation; only if that vote fails does the committee then decide whether to send the candidate on with no recommendation. But Hatch skipped to first step out of concern that some Republicans might break ranks.

“I want to say at the outset that I am well aware that there are sincerely held concerns here in the Committee about Mr. Holmes’s nomination, which my colleagues expressed at our last [meeting],” Hatch said this morning. “There are concerns about some of his public stands as a citizen, including some editorials and articles he has written. As I said at the [meeting], I have to admit that I am also concerned about some of those comments. They trouble me as well….Given the concerns that Mr. Holmes’s nomination has generated, I have decided that the most prudent way to proceed on his nomination is to move directly to a vote without recommendation.”

Hatch also noted that Holmes has broad, bi-partisan support in Arkansas, including that of his home state’s two Democratic senators. In the end, Holmes was reported out of committee without recommendation on a ten-to-nine, straight party line vote.

Also contributing to the turmoil on the judicial front, this morning Democrats made good on their pledge to filibuster the federal appeals-court nomination of Priscilla Owen. The vote on a Republican measure to invoke cloture, or stop debate and hold and up-or-down confirmation vote, was 52 to 44.

As in the case of Miguel Estrada, the vote leaves Republicans several short of the 60 votes they need to stop the filibuster.

Prior to the vote, Democrats were not sure how many votes they would be able to muster, but were confident that it would be enough to stop Owen. “We know that the other side doesn’t have 60, which is the only number that matters” said a Democratic aide. “Whether the vote is 42 or 49 or 55, if they don’t have 60, the result is the same.”

Meanwhile, the battle over the federal judiciary took a farcical turn Wednesday when New York Democratic Sen. Charles Schumer, perhaps the most zealous critic of Bush judicial nominees, sent the White House a proposal to end the current conflict.

Schumer’s idea is simple. The problem would be solved, he says, if the president would simply give up his constitutional right to nominate judges. Instead, Schumer suggests that

Both the Administration and the Senate should agree to the creation of nominating commissions in every state, the District of Columbia, and each Circuit Court of Appeals. Every commission will consist of an equal number of Republicans and Democrats, chosen by the President and the opposition party’s Senate leader. Each commission will propose one candidate to fill each vacancy. Barring evidence that any candidate proposed by a commission is unfit for judicial service, the President will nominate the individual and the Senate will confirm her or him.

Article 2, Section 2 of the Constitution says the president “shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for…” In his letter to the president, Schumer says that under his proposed system, “By giving the President and the Senate equal roles in picking the judge-pickers, both retain some control over the process, but neither gets a stranglehold.”

So far the White House has not responded.