May 24, 2005
By Ronald Brownstein and Janet Hook
Los Angeles Times
WASHINGTON The fate of the agreement defusing the Capitol Hill confrontation over judicial nominations now rests as much in the hands of President Bush as the senators who crafted it.
The dramatic deal reached Monday night by a bipartisan group of 14 senators forestalled a showdown over a GOP effort to ban the filibuster for judicial nominations. It produced immediate results today when the Senate swept away a filibuster preventing a final vote on Priscilla R. Owen, a long-stalled Bush nominee to the federal court of appeals now expected to win confirmation Wednesday.
Some participants in the talks expressed hope that the agreement would create momentum for compromise on other knotty issues such as Social Security and immigration.
"Watch this group when it comes to major problems that the nation faces like Social Security," said Sen. Lindsey Graham (R-S.C.), one of the deal's supporters. "I think we have created momentum for the idea that if you constructively engage each other, the political reward is high."
But the deal, in which seven Republicans agreed to oppose the filibuster ban while seven Democrats agreed to use the procedural tool against judges only in "extraordinary circumstances," could prove short-lived if future court nominations provoke the same partisan conflicts as the judges now under dispute.
Partisans on both sides say the agreement will face the greatest strain when the next vacancy opens on the Supreme Court, perhaps as soon as this summer, when many expect ailing Chief Justice William H. Rehnquist to retire.
"The Supreme Court is probably where this comes to a head," said Gary Marx, executive director of the Judicial Confirmation Network, a conservative group supporting Bush's nominees.
If Bush chooses a highly polarizing nominee for that vacancy, the seven Democrats on the deal would face enormous pressure to support a filibuster and that would instantly pressure the deal's Republican supporters to reverse direction and back the filibuster ban.
Both Graham and Sen. Mike DeWine (R-Ohio), another of the deal's supporters, indicated in interviews today that they would support a filibuster ban if Democrats launched a filibuster they did not believe met the "extraordinary circumstances" standard.
With the arrangement balanced so precariously, the critical factor in its survival may be Bush's reaction to the group's request that he consult more closely with senators of both parties on his future court appointments, especially any choices for the Supreme Court.
"It totally depends on Bush," said Ron Klain, who helped guide two Supreme Court nominations for President Clinton as deputy White House counsel and Justice Department chief of staff. "If Bush picks someone for the Supreme Court who is middle of the road ... that person is going to get confirmed easily and then this agreement will hold. If Bush chooses a different course, and picks someone of an ideological stripe like these more controversial appellate court nominees, this agreement ... will unravel very shortly after that."
Supporters and critics of the deal united primarily on one point: its real impact would be determined by how it affects future nomination fights.
The deal directly established conditions only for handling five appellate court nominations. It guaranteed up or down votes for Owen, Janice Rogers Brown and William Pryor, all of whom are now virtually certain to be confirmed. And it explicitly noted that participants had not agreed to oppose a filibuster on two others, Henry W. Saad and William G. Myers. Both are now expected to be defeated.
But the deal does not directly deal with seven other appellate court nominees Bush sent to the Senate in February. Sources on both sides said they expected four to win confirmation: Richard A. Griffin, David W. McKeague and Susan B. Neilson, all nominated for the 6th Circuit, and Thomas B. Griffith, who was nominated for the powerful D.C. Court of Appeals.
Brett Kavanaugh and William J. Haynes II, nominated for the DC and 4th circuits, respectively, face much longer odds. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), listing the nominations he expected to move forward, pointedly omitted both.
Kavanaugh, a former aide to Whitewater special counsel Kenneth Starr, has faced charges that he lacks enough experience; Haynes, the Pentagon general counsel, saw his nomination stalled during Bush's first term amid questions about his role in devising administration policies for handling detainees in the war on terrorism.
The aide said there were no expectations about how the deal would affect Terrence W. Boyle, another Bush nominee to the 4th Circuit, although Specter included him among those he expected to advance quickly.
Disputes about the handling of those nominees or future Bush nominees for other vacancies on the appellate courts conceivably could threaten the deal. But the more likely flashpoint would come if Democrats filibuster a Bush Supreme Court nominee.
DeWine was unequivocal in insisting that if Democrats filibuster a judge he did not believe met the "extraordinary circumstances" standard, he would switch his vote to support a filibuster ban.
"If I felt their action in filibustering any judge, including a Supreme Court judge, was beyond the bounds ... I certainly would have every right to, and would, vote yes on a motion" to ban the filibuster, DeWine said.
The potential for future friction was immediately apparent in the initial attempts to define those boundaries. Republicans, including critics of the deal, among them Sen. John Cornyn (R-Texas), quickly argued that the Democratic willingness to accept staunch conservatives Owen, Brown and Pryor meant that the Bush nomination of an equally conservative judge to the Supreme Court would not satisfy the deal's "extraordinary circumstances" standard for a filibuster.
Democrats resisted that interpretation.
"Conservatives are trying to ascribe a meaning to an agreement that doesn't exist," said David DiMartino, the spokesman for Sen. Ben Nelson (D-Neb.), the deal's principal Democratic supporter.
Graham seemed to side with the critics' assessment when he told reporters: "The fact that you're a conservative is no longer an extraordinary circumstance."
But like many of those involved, Graham also said the agreement should send a clear signal to the president that senators in both parties wanted more consultation over court appointments.
"I think the president needs to get the message that more collaboration is better," he said. "We've got to understand that you expect the president to send conservative judges over. The question is whether we can find common ground and someone acceptable."
Likewise, Sen. Susan Collins (R-Maine), who also signed the deal, said, "The White House might have an easier time winning prompt confirmation if it consulted more with members of the Senate....There is a feeling that in the past the Senate was more involved in giving suggestions and signing off on nominations than it is now."
Administration aides, speaking on condition of anonymity while discussing White House strategy, rejected the suggestions that Bush needed to consult more with the Senate or to pick less controversial judicial nominees.
"You're not going to see the president change his ideology," said one official.
If that means Bush's future nominees divide the parties as sharply as those in the current group, this week's agreement may promise the Senate not so much "peace in our time" as a mere break in the battle. Few in either party disagreed with Sen. Orrin Hatch (R-Utah), a former Judiciary Committee chairman, when he declared, "This is merely a truce. It's not a treaty."
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