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Deal by 14 Senators Retains The 14 senators – seven Republicans and seven Democrats – signed a “Memorandum of Understanding” late on May 23, the evening before Senate Majority Leader Bill Frist (R-Tn.) would have required the Senate to vote on his proposed rules change to prohibit any further filibusters of judicial nominees. Frist’s proposed reform is usually referred to by its supporters as “the constitutional option,” but most often by the news media as “the nuclear option.” (For further explanation, see “Filibusters and the ‘Constitutional Option.’”) By their signatures, the seven Democrats who signed the memorandum agreed that for the remainder of this year and during 2006, “Nominees [to federal judgeships] 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.” In return, the seven Republicans pledged not to vote for the rules change while the agreement remains in force. Because none of the Senate’s 45 Democrats supported the rules change, this commitment by the seven Republicans denied Frist the majority he needed to accomplish the reform – at least for the moment. The seven Democrats also agreed to support ending the filibusters that had blocked confirmation of three of President Bush's nominees to federal courts of appeals – Priscilla Owen, Janice Rogers Brown, and William Pryor. As a result, Owen was confirmed to the U.S. Court of Appeals for the Fifth Circuit on May 25, by a vote of 55-43, ending a wait of more than four years. It is expected that Brown will be confirmed to the U.S. Court of Appeals for the District of Columbia, and Pryor to the U.S. Court of Appeals for the Eleventh Circuit, later this month. Signing the “Memorandum of Understanding” were Republican Senators John McCain (Az.), Lindsey Graham (SC), Mike DeWine (Ohio), Olympia Snowe (Me.), Susan Collins (Me.), John Warner (Va.), and Lincoln Chafee (RI), and Democratic Senators Ben Nelson (Ne.), Mark Pryor (Ar.), Mary Landrieu (La.), Ken Salazar (Co.), Robert Byrd (WV), Joseph Lieberman (Ct.), and Daniel Inouye (Hi.). News media accounts credited McCain with being the primary Republican architect of the deal. McCain, a likely contender for the 2008 Republican presidential nomination, had announced weeks earlier that he would vote with the Democrats against adoption of the “constitutional option.” (See “Who Opposes Filibuster Reform?,” May 2005 NRL News.) Snowe and Chafee had also made it known for many weeks that they would not support the rules change. Warner and Collins had criticized Democrats for their routine use of filibusters against judicial nominees, but had also expressed reluctance to support the rules change. During the closing days of negotiations, those five
Republicans were joined by Graham and DeWine, who have strong pro-life
records. Senate Democratic Leader Harry Reid (Nv.) reacted to the agreement with jubilation, saying on the Senate floor, “It took the nuclear option off the table. It is gone for our lifetimes.” But Frist said that the constitutional option “remains on the table. It remains an option. I will not hesitate to use it, if necessary.” Frist expressed dissatisfaction with the agreement, noting that he had been fighting for the principle that judicial nominees, including nominees to the Supreme Court, should all receive up-or-down confirmation votes. “The agreement reached tonight falls short of that principle,” Frist said. NRLC Legislative Director Douglas Johnson commented, “We commend Senate Majority Leader Frist for his sustained efforts to end the use of filibusters as a means of obstructing judicial nominees.” A number of the Republican senators who had worked hard for the rules change criticized the agreement. “It was negotiations that took place in a room where I didn’t participate, where the American people were not given the opportunity to listen in and judge for themselves,” said Sen. John Cornyn (R-Tx.). A White House spokesman welcomed the prospect of long-awaited confirmation votes on nominees Owen, Brown, and Pryor, but added, “We will continue to push for an up-or-down vote on all of our nominees.” The reactions from groups working for confirmation of the President’s judicial nominees ranged from disappointment to outrage. Graham and DeWine were strongly criticized by some conservatives, based on the widespread belief that had it not been for their participation in the deal, Frist would have had the votes necessary to adopt the rules change on May 24. However, some defenders of Graham and DeWine argued that it was not clear whether Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) would have voted with Frist – and if Specter had voted with the Democrats, the reform would have been defeated, with the likely result that Democrats would be even more unrestrained in using the filibuster in the future. “No one knows how the vote on the constitutional option
would have come out,” DeWine said on Fox News. “We might have won. We might
have lost. If we had lost, it would have been devastating for the president
when he tried to get a nominee up here for the Supreme Court.” Two key questions surrounding the agreement are how individual Democratic signers will define “extraordinary circumstances” in the future, and how the Republican signers will respond to any future participation in a filibuster by any of the seven Democratic signers. Democratic Leader Reid asserted that all of the past filibusters had been “extraordinary,” and that the agreement therefore really did not change things. Others on the pro-filibuster side argued that nominations to the Supreme Court were by their very nature “extraordinary.” But both DeWine and Graham publicly insisted that it would be a breach of the agreement if any of the Democratic signers voted to continue a filibuster against a nominee based on his or her conservative judicial philosophy, and both said if that occurred, they would be prepared to vote with Frist to change the rule. DeWine told the Washington Post that he had explicitly raised the issue just before the group announced the deal. “I said at the end, ‘Make sure I understand this now . . . if any member of this group thinks the judge is filibustered under circumstances that are not extraordinary, that member has the right to vote at any time for the constitutional option.’ Everyone in the room understood that.” Graham said on the Senate floor, “If one of the seven decides to filibuster -- and I believe it’s not an extraordinary circumstance for the country, for the process, then I’ve retained my rights under this agreement to change the rules if I think that's best for the country.” While some Democratic sources disputed this interpretation, one of the Democratic signers, Mark Pryor (D-Ar.), told the Washington Post, “I really think that Senator DeWine and Senator Graham have it right.” NRLC’s Douglas Johnson commented, “If any of the signers later join a filibuster against a nominee to the Supreme Court, then the pro-life senators who signed must recognize this as a betrayal of the faith they have put in their colleagues, and immediately support reform of the rules in order to prevent further abuse by an obstructionist minority.” The liberal groups most directly involved in blocking judicial nominees expressed sentiments ranging from mild disapproval to qualified approval. Nan Aron of the Alliance for Justice, an umbrella group that has helped orchestrate the filibusters of President Bush’s nominees, said she was “very disappointed with the decision to move these extremist nominees one step closer to confirmation.” But Ralph Neas, president of People for the American Way, called the agreement “good news for the American people,” adding, “Saving the Senate's constitutional advice and consent role, and the checks and balances that protect judicial independence, is especially important with multiple vacancies expected on the Supreme Court. The agreement assures that the filibuster will be available, as it has been throughout our history, if the President ignores the spirit of this agreement and nominates an ideologue to the Supreme Court.” Both Neas and Aron have made it clear in various interviews that their groups would demand filibusters against most of those who are most often discussed in media accounts as possible nominees to the Supreme Court by President Bush. Aron also indicated in recent interviews that her group would oppose any nominee to the Supreme Court who does not pledge to support Roe v. Wade, and that she regards sitting Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas as “extremists.”
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