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Capitulation
The Senate deal is not fair to the nominees who were lost in the trade.


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Conservatives examining last night’s Senate deal on judicial nominees should see it as not a compromise but, as a capitulation. It does not save the stature of the Senate, but confirms its reputation as a den of mutual back-scratchers willing to throw principle out the window so their own reputations for wisdom and statesmanship can remain intact.

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The reasons for this indictment are many. But the primary reason is that the Senate has treated two nominees as dispensable pawns, with no thought at all about the torment they have been and will continue to be put through. Henry Saad and William Myers have been grievously wronged. They were subjected to rules that did not exist when their nominations were first forwarded, rules they had no reason to expect would exist.

Because no judicial nominations had been permanently blocked, i.e. killed, via filibuster for 214 years, these two men had every reason to believe they would get fair, up-or-down votes on the Senate floor. Sure, there was no guarantee they would be confirmed, but there was a guarantee that they would have their day in . . . well, not in court, but in the court of public debate, in a forum that bills itself as the greatest deliberative body in the world.

Instead, they find themselves traded off, and effectively out of the running for the bench.

A federal-bench nomination turns one’s life upside down. The nominees face the star chamber of the ABA, where fellow lawyers can slime their reputations anonymously. The nominees face scrutiny by radical activist groups, face the likelihood that their every writing and utterance will be taken out of context, their motives questioned, their character smeared. The paperwork asked of nominees is mind-boggling in volume and detail, and the time lost in its preparation is financially burdensome. The whole experience is a nightmare of effort, pressure, and uncertainty.

The least that can be done for a nominee who has made it through so much is to give him a fair vote under the same rules that were understood to apply when the nomination first was made. Those rules, for judicial nominees, never included anti-majoritarian permanent filibusters—and shouldn’t.

Even so, politics ain’t beanbag. It can be harsh. Loopholes in the rules can be exploited. Democrats had done so in this case, successfully. And enough Republican senators were wobbly for there to be no guarantee that the “constitutional option” would have passed. In such circumstances, a compromise of sorts might have been, not good, but barely acceptable. That compromise would have included fair, unfilibustered votes for all pending nominees on the floor and on an actual committee schedule. That would include nominees Saad and Myers, and it would include nominees Brett Kavanaugh and Terry Boyle, who would have been confirmed by committee last Thursday had the Democrats not used a maneuver to close down all committee action.

In return, Democrats might have been granted the right to filibuster only in “extraordinary circumstances” all future nominations. Why? Because at least then the nominees would know the rules in advance. And so would the White House and the Senate. And the Democrats would have found themselves hard-pressed to filibuster, say, Judges Garza or Alito for Supreme Court spots. The Democrats could bring home their precious trophy of the “right” to filibuster, but all pending nominees would have received fair votes and the Bush White House could have called on a deep enough bench for high-court nominees that the confirmation of two solid originalists would have been virtually assured.

And nobody would have been treated as an unwitting pawn sacrificed on the altar of a false Senate “comity.”

Politically, the Democrats have won. Morally, the Republicans have lost. Lost, because they have mistreated two good men, William Myers and Henry Saad. Lost, because they decided that their “principle” of opposing filibusters on judicial nominations must give in to a purely political concern in what is supposed to be a forum of disinterested statesmen. Reasonable compromise is one thing. But this was craven capitulation to the dictates of Washington’s conventional wisdom.

Quin Hillyer is an editorial writer and columnist for the Mobile Register.



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