Bench Memos

NRO’s home for judicial news and analysis.

Initial Reactions


1. The Memorandum of Understanding is silent as to one nomination that is already on the floor, that of Thomas B. Griffith to the D.C. Circuit. It also is silent as to all the other nominations that are already pending but have not yet reached the floor.

All the more reason to think that this MOU marks only a very temporary cooling off. The issue will resurface soon, and it is now crystal-clear which Republicans need, ahem, reinforcement.

2. The Republican signatories’ agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories’ living up to their end of the bargain. The fact that the MOU contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory’s determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory’s determination of extraordinary circumstances amounts to a violation of the MOU. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute “extraordinary circumstances”.

3. The idea that the Constitution contemplates that the President will consult with the Senate before making nominations is belied by the text of Article II, section 2, clause 2, which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” judges. As a matter of basic grammar, the phrase “by and with the Advice and Consent of the Senate” plainly modifies “shall appoint,” not “shall nominate.” And the idea that consulting Senate Democrats about prospective nominees would somehow have any value is ludicrous.

I Wonder


what this deal will mean for Brett Kavanaugh


Cornyn on the Deal


“After enduring years of harsh, unjustified attacks, Justice Priscilla Owen, Justice Janice Rogers Brown, and Judge William Pryor will finally get an up-or-down vote on the Senate floor. The signatories have also agreed not to filibuster judicial nominations in the future except under extraordinary circumstances. But Owen, Brown, and Pryor are highly qualified nominees who are firmly committed to the rule of law. They should never have been filibustered in the first place, and I expect the signatories to hold firm to their agreement not to filibuster similarly qualified nominees in the future. Otherwise, the spirit of the deal will be broken, and signatories will be and should feel free to take action to restore the 214-year Senate tradition of majority vote.

“The Senate judicial confirmation process has been at times emotional and politically divisive, and that is unfortunate. But all Americans of good faith should at least agree that we need a fair process for selecting judges – with full investigation, full questioning, full debate, and then an up-or-down vote. And all Americans should agree that, although nobody likes to lose, the rules should always be the same, regardless of whether the president is Republican or Democrat. President after President after President have seen their judicial nominees confirmed by majority vote, not supermajority vote. Senators should uphold and restore that 214-year tradition.

“I will continue to advocate for up-or-down votes on all of the President’s judicial nominees.”

Taken to the Cleaners


As I write, Bill Frist is on the floor of the Senate gamely putting lipstick on this pig of an agreement, when he should be denouncing it. Sometimes the Senate’s fabled “comity” is a truly disgusting sight.

Consider the text of the agreement, posted by Sister Lopez below. The Republicans gave up William Myers and Henry Saad–for the 109th Congress, anyway–on no grounds having to do with their fitness for the federal bench, and got nothing, absolutely nothing, in return. Indeed, the Sanctimonious Six have made a public promise to betray their party’s leadership for the duration of this Congress, should that leadership attempt again to enforce two centuries of tradition on respect for the Senate’s responsibilities to act on judicial nominations.

So the GOP fails once again to show that it has learned to act like a governing party, when the voters have made it responsible for so acting. The Democrats, by contrast, may pat themselves on the back for taking those Republican fools to the cleaners. Democrats remember so well how to govern that they can even do it from a position of weakness. By now this is a disappointment without being a surprise.

Daily Kos Read


An e-mail:

Over at the Daily Kos. the reaction is pretty mixed. Most are holding out hope that there is an unwritten agreement that some of the R’s on this deal will vote against CONFIRMATION for Owen, Brown, or Pryor.

Some are despondent that D’s gave up the right to fillibuster Supreme Court nominees except for ethical improprieties. I agree with the poster who says that the test of this deal is in how quickly Frist moves to a confirmation vote on Owens. If he does so tomorrow, I agree that the R’s did not make a deal to vote the magical three down. If not…I hope there is no if not. Frist and Reid are taking a pounding over there BTW.


The Drama’s Not Over, for Sure


Charlie Schumer on the floor of the Senate right now: “Armageddon has been avoided, and thank God for that.”



Kathryn, I agree with you that Reid’s treatment of Saad was particularly shameful (which is saying something given how some of the nominees have been treated). My only point is that he was certain to be on the list because of the e-mail incident. (I also suspect that some Dems wanted him on the list so Bush couldn’t claim credit for nominating the first Arab-American appellate judge.)

About the Deal


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


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

Deal: Bottom Line


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”


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



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?

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


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”


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?



Reid Just Promised in His Press Conference


to filibuster on Myers.

At Reid Presser Now


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

“Nominees should only be filibustered under extraordinary circumstances.”


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.”


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.?




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.


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