Bench Memos

Deal Sticking Points

Today’s WaPo story on deal negotiations suggests that several of the moderate Republicans are holding out. First, they are objecting that the “extraordinary circumstances” loophole gives the Dems too much leeway, especially considering that the deal would call for moderate Republicans to oppose any rule change for the rest of the 109th Congress. Second, they continue to wrestle with the Dem negotiators on which and how many judges would be sacrificed. According to the Post, the Republicans “argued that the Democrats had already successfully blocked, in Bush’s first term, three other appellate court nominees who have not been renominated, and that they now should not be able to block three more.” That the Republican moderates would hold out on these points is a promising sign that if there is a deal, it won’t be an unmitigated disaster.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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