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Bench Memos

NRO’s home for judicial news and analysis.

All Options Remain Open



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Sen. Cornyn on the deal:

I was not a party to this deal. I firmly believe we should restore the Senate tradition of majority vote on all judicial nominations. And I am disappointed that the Senate did not do that last week.

It is nevertheless important to recognize three important elements of the deal reached by these 14 senators:

First, although it doesn’t solve the problem today, the deal does keep all options open — including, of course, the Byrd option — for solving the problem in the future.

Second, with Owen’s confirmation, it should now be settled that disagreement over judicial philosophy is not an “extraordinary circumstance” — and, thus, no justification for a filibuster. Call it the “Owen standard.” Senators should vote their conscience, but debates over judicial philosophy and disagreements about past rulings are no grounds for violating Senate tradition by imposing a supermajority voting requirement for confirming judges.

Third, should the Owen standard be violated and a baseless filibuster against a judicial nomination be launched in the future, that would be a violation of the agreement — and, thus, grounds for the use of the Byrd option to restore Senate tradition.



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