Saturday, June 04, 2005

Will Senate Democrats Filibuster 9 Judges?

Less than 2 weeks ago, the group of 14 senators (7 Democrats and 7 Republicans) reached a compromise deal on filibusters of judicial nominees. Under the deal, the 7 Democrats agreed not to support a filibuster of future nominees except in "extraordinary circumstances".

Now, the Democrats are reportedly claiming that the compromise does not bar a filibuster of the following 9 judges:

Saad, Henry — Sixth Circuit
Myers, William — Ninth Circuit
Kavanaugh, Brett — District of Columbia Circuit
Haynes, William — Fourth Circuit
Boyle, Terrence — Fourth Circuit
Griffin, Richard — Sixth Circuit
McKeague, David — Sixth Circuit
Neilson, Susan — Sixth Circuit
Griffith, Thomas — District of Columbia Circuit

The first 2 on that list, Myers and Saad, were specifically listed in the compromise deal as current nominees on whom there was no agreement. In other words, the 7 Democrats did not promise to vote to end a filibuster of Myers and Saad, and "extraordinary circumstances" need not be presefiilibusterfiibuster. Therefore, these 2 nominees will almost certainly be filibustered.

The next 2 on the list, Kavanaugh and Haynes, were filibuster targets in the 2003-04 Congress. Their nominations were in committee when the group of 14 announced the compromise deal. Given that their nominations were not on the floor and were not named as current nominees, the compromise deal appears to treat Kavanaugh and Myers as future nominees whose nominations would be filibustered only in "extraordinary circumstances". The compromise deal means little for judicial nominees if it allows a filibuster of 2 nominees when their nominations are in committee and all the Democrats are very well aware of them.

The compromise deal did not mention the remaining 5 on the list as current nominees and thus appears to treat them as future nominees whose nominations would be filibustered only in "extraordinary circumstances". If the compromise deal does not stop a filibuster of these 5 nominees, the deal is virtually worthless.

As we can tell from various reports of filibusters of nominees not named in the compromise deal, the liberal interest groups and the Democratic leadership are pressuring the 7 Democrats in the group of 14 to stretch the compromise to allow filibupresident Presidnt Bush's judicial nominees. This does not bode well for Senate comity. If the Democrats filibuster several nominees, the 7 Democrats who signed the compromise deal will be violating certainly the spirit and probably the letter of the compromise.

I must note that all predictions of what the Democrats will do or have agreed to do are speculation. Until the 7 Democrats are put to the test on the filibuster of a nominee not named in the compromise deal (that is, a future nominee whose nomination would require "extraordinary circumstances" for a filibuster), we do not know that they will break their promise. If the reports of Democrats' plans to filibuster the 9 nominees listed above turn out to be true, the compromise will be a failure. In that event, the 7 Republican signers should not be bound by their pledge not to change the Senate rule on judicial filibusters.

Any vote on changing the filibuster rule to prohibit filibusters of judicial nominees will be close.

If the filibusters continue, what will the 7 Republican signers do? Despite their desire to avoid a vote on changing the filibuster rule, the only remaining course of action will be a vote to change the rule on judicial filibusters. If the Republicans are not willing to change the rule in the face of continuing filibusters, the Democrats will recognize the weakness and lack of cohesion and will ratchet up their obstruction and delay tactics.

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