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Justice Held Hostage
On the anniversary of Bush nominations, Republicans search for a way to break the deadlock.


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Byron York

As reported here Thursday, Senate Republican leaders searching for a way to break the deadlock over judicial nominations have decided to forego the so-called “nuclear option” and instead introduce a measure written by Georgia Democratic Sen. Zell Miller that would create a step-by-step process for ending filibusters during confirmation battles.

Senate Democrats are currently filibustering the federal appeals court nominations of Miguel Estrada and Priscilla Owen, and are thought to be planning to filibuster other nominees in the future.

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The Miller proposal, which is based on an idea put forth in 1995 by Democratic senators Joseph Lieberman and Tom Harkin, would make it progressively more difficult for a minority party to sustain a filibuster against a nominee with majority support. Under the plan, when a filibuster is under way and the majority tries to break it by holding a cloture vote, the first vote would require, as it does today, 60 votes to break the filibuster. But if the first attempt fails, the next cloture vote would require just 57 votes to end debate. If a third cloture vote was needed, 54 votes would be needed to end debate. Finally, a fourth cloture vote would require just 51 votes, a simple majority, to move on to a final confirmation vote. At that point, the majority’s will would prevail.

Miller’s plan originally proposed this method for ending all filibusters. The plan to be introduced today, known to insiders as “Miller Lite,” will apply only to nominations.

According to sources, Miller Lite will be cosponsored by ten Republican senators.

No one believes the measure has enough support to succeed or to end the current filibusters of Estrada and Owen. And there are no plans to move forward with the “nuclear option,” a plan that involves using parliamentary maneuvers to force rule changes through the Senate by a simple majority vote (current Senate rules require approval by two-thirds of the senators present and voting if a minority objects to a proposed rules change, as Democrats surely would).

For the moment, Republican leaders want to propose the Miller plan as a step toward a resolution of the filibuster standoff. “It’s an argument that has to be rolled out, discussed, you build public attention to it, and then see what happens,” says one Republican.

The move comes on the second anniversary of President Bush’s nomination of his first eleven candidates to the federal courts of appeals. On this day in 2001, Miguel Estrada, John Roberts, Barrington Parker, Dennis Shedd, Roger Gregory, Terrence Boyle, Priscilla Owen, Edith Brown Clement, Jeffrey Sutton, Deborah Cook, and Michael McConnell stood the East Room of the White House and listened as the president pleaded with the Senate to “rise above the bitterness of the past” and move toward speedy confirmation.

“Over the years, we have seen how the confirmation process can be turned to other ends,” the president said. “We have seen political battles played out in committee hearings — battles that have little to do with the merits of the person sitting before the committee. This is not good for the Senate, for our courts, or for the country.” As a gesture of goodwill, Bush re-nominated two Clinton nominees, Roger Gregory and Barrington Parker, who had not been confirmed by the Republican Senate.

Sen. Patrick Leahy, who was then the ranking Democrat on the Senate Judiciary Committee, attended the White House ceremony and had some hopeful words afterward. Leahy told reporters he was encouraged by White House actions, especially the re-nomination of Gregory and Parker. “Had I not been encouraged, I would not have been here today,” Leahy said.

Leahy would soon take over the Judiciary Committee after the defection of Sen. Jim Jeffords gave Democrats control of the Senate. In the period of Leahy’s control before the November 2002 elections in which Republicans won the Senate, Democrats confirmed just three nominees — Gregory and Parker (the two Democrats) and Edith Brown Clement. Two others, Shedd and McConnell, passed the Democratic Senate in the transition period after the election.

Six of the original 11 nominees were left unconfirmed when nearly two years of Democratic control ended in January.

Since Republicans have taken over, three more of the original 11 — Roberts, Sutton, and Cook — have been confirmed. The most recent was Roberts, who was approved by the Senate just yesterday.

The final three of the original 11 — Estrada, Owen, and Boyle — are being blocked by Democratic parliamentary maneuvers. Estrada and Owen, both approved by the Judiciary Committee, are being filibustered on the Senate floor, and Boyle is being blocked by North Carolina Democratic Sen. John Edwards.

The standoff also includes appeals-court nominees who were not part of the president’s original eleven, like Charles Pickering and Carolyn Kuhl.

Although it is always possible that parliamentary maneuvering will help break the standoff, a number of Republicans involved in the confirmation battle now believe it will only be truly resolved by the 2004 elections. If Democrats continue their obstruction, President Bush will undoubtedly use the issue during the campaign, particularly in states with vulnerable Democratic Senate candidates.

“What we’re battling now is the left wing of the Democratic Senate caucus, which is telling the moderates what to do,” says one Republican. “If the president can maintain his popularity and be the kind of Senate campaigner that he was last time [in 2002], then we can break their backs.” In this scenario, a Democratic defeat in 2004 would likely cause party moderates to reject the left wing — and the interest groups that have spearheaded opposition to the president’s nominees — and move away from filibusters and other obstructionist tactics.

“If these guys go up to the election and get their back broken,” says the Republican, “then we win.”



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