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Bench Memos

NRO’s home for judicial news and analysis.

About the Deal



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Two quick points responding to the moderates’ deal on judicial filibuster: 1. The national center-right coalition opposing judicial filibusters, and the Senate leadership, will continue to push for an up or down vote on every qualified judicial nominee.

2. The fact that Senate Democrats are willing to allow cloture on Owen, Brown, and Pryor indicates that conservative judicial philosophy cannot be considered the basis for a filibuster, or an “extraordinary circumstance.”

RE: Saad



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Jon, I confess, that Reid FBI file stunt nearly made me want him in as much as I wanted Bill Pryor in.

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Deal: Bottom Line



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I have two initial thoughts about the deal. First, if Chief Justice Rehnquist retires at the end of this term, as may expect, and President Bush nominates a mainstream conservative to the court (e.g. Michael Luttig, John Roberts, Michael McConnell), if the Democrats filibuster the deal was made in bad faith. Indeed, the only possible “extraordinary circumstance” if a mainstream conservative were nominated to replace Rehnquist would be clearly documented ethical improprieties.

Second, if any of Bush’s nominees had to be thrown overboard, I would have picked William Myers to be among them. In my mind, he is the least impressive of Bush’s appellate nominees. As for Henry Saad, his fate was sealed an e-mail he sent disparaging a Senator was inadvertently exposed.

Lindsey Graham & “Nuclear Option”



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There seems to be multiple interpretations of this deal, even in the Senate.

“AN ASYMMETRIC DEAL”



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Ramesh Ponnuru weighs in in The Corner. He says, “It looks as though the majority party got taken in this deal.”

What is the point of being in the majority?

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“In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress”



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So the Dems are promising right now to filibuster at least one nominee before them, but the Republicans tied their hands vis-a-vis a rule change for the entire 109th Congress?

“It’s a shame”



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not everyone is going to get an up and down vote, Bill Frist is saying now on the Senate floor. What about Meyers and Saad, he says.

Who’s the majority leader again?

THE DEAL



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Reid Just Promised in His Press Conference



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to filibuster on Myers.

At Reid Presser Now



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“Michigan judges are going to be approved–except for Saad, of course.”

“Nominees should only be filibustered under extraordinary circumstances.”



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Besides being annoyed every judge isn’t getting a vote, what is extradordinary circumstances? Do we know what that means? Isn’t the blocking of “extremists” Brown/Owens/Pryor “extraordinary circumstances” in the minds of Harry Reid, etc.?

“Nominees should only be filibustered under extraordinary circumstances.”



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Besides being annoyed every judge isn’t getting a vote, what is extradordinary circumstances? Do we know what that means? Isn’t the blocking of “extremists” Brown/Owens/Pryor “extraordinary circumstances” in the minds of Harry Reid, etc.?

THE DEAL--TEXT



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MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS

We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate’s Judiciary Committee.

We have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Part II: Commitments for Future Nominations

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.

Winners & Losers



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“The Senate won and the country won.” (I think that was McCain…I wasn’t looking at the screen.) Oh please.

Reax, based only on Press Conference



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Damn, a deal. The nonsense that this would hurt the Senate is silly–the Senate is hurt by the nonsense the Dems have pulled. And some kind of record has to show that–the NR history of the world, if nothing else.

But, that said, the Dems have invested so much in making Janice Rogers Brown, Priscilla Owen & Bill Pryor “extremists” that you gotta imagine people in People for the American Way offices are swearing right now.

Filbustering



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according to the agreement, will only happen in “extraordinary circumstances.”

Agreeing (this and the following posts are based on the presser)



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to vote for cloture on Rogers Brown, Owen, Pryor…

Totally Overly Dramatic



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intro from John McCain….about the damaging impact the rule change would have had.

Republicans Who Dealed



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McCain, DeWine, Snowe, Warner, Graham, Collins (update: chafee who is not present)

A Compromise Is Happening



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