Faced with the prospect of swearing in no new judges for the rest of the year, the White House and Senate Democrats finalized a deal Tuesday that all but guarantees the confirmation of 25 judicial nominees in exchange for a pledge by President Bush not to make recess appointments.
Senate Democrats sealed the pact early Tuesday in a meeting with White House Chief of Staff Andrew Card in Majority Leader Bill Frist’s (R-Tenn.) office. It was then solidified in a brief colloquy on the chamber floor between Frist and Minority Leader Tom Daschle (D-S.D.).
By striking an accord to end a months-long blockade by Democrats, the White House gave in to the key central demand that Bush agree to stop making recess appointments of federal judges this year.
Frist and other Senate Republicans had been adamantly opposed to Bush giving up what they considered to be his rightful constitutional authority. But White House officials indicated no more nominees who would fit the profile of a recess appointment were in the pipeline this year, leaving Bush free to make such a pledge in order to get a significant number of judges through the Senate.
“They were willing to put that on the table,” Frist said. He called the approach “fair and balanced.”
The deal guarantees up-or-down confirmation votes on 25 nominees — 20 at the district court level and five on appellate courts — before the start of the July Fourth recess, which is slated for June 25.
But Frist also assured Daschle that he would not seek cloture votes on controversial nominees who are currently being filibustered — specifically Janice Rogers Brown for the U.S. Court of Appeals for the D.C. Circuit, Carolyn Kuhl for the 9th Circuit and Priscilla Owen for the 4th Circuit — until after Labor Day.
In addition, Frist guaranteed no cloture votes on the two judges who received recess appointments: Charles Pickering of the 4th Circuit and William Pryor of the 5th Circuit. Despite their temporary appointments, both judges could still be confirmed to lifetime seats.
Daschle also refused to allow for an automatic up-or-down vote on William Haynes and William Meyers, two controversial circuit court nominees already approved by the Judiciary Committee and awaiting floor action. Frist is free to hold a cloture vote on Haynes and Meyers at any time, but Daschle made clear that if he does, their nominations would be filibustered, bringing to eight the number of judicial nominees filibustered by Senate Democrats in the 108th Congress. One filibustered nominee, Miguel Estrada, withdrew his nomination to the D.C. Circuit earlier this year.
Most of Frist’s colleagues agreed that they got the best deal possible. “From that standpoint, getting 25 [judges] is a positive deal for us,” said Sen. Saxby Chambliss (R-Ga.).
Other Senators, however, didn’t like the idea of giving up for almost four months on nominees who are already being filibustered. These critics suggested that the only way to win their confirmation would be to keep the pressure on Democrats by holding periodic debates and votes. “We certainly need to continue to fight for them,” said Sen. Jeff Sessions (R-Ala.), a senior Judiciary member who saw his own judicial nomination derailed amid partisan skirmishing in 1985. “I’m a little troubled. I would like to move some of those up.”
Meanwhile, some outside activists said they believe Bush sent the wrong signal by giving in to Daschle’s demands and by receiving no guarantee of an end to filibusters. “This deal, on its face, appears to do nothing but give Daschle and his cohorts fodder to continue to deflect attention from the unfair treatment of all of the president’s judicial nominees,” said Marshall Manson, spokesman for the conservative Center for Individual Freedom.
Though the judicial confirmation process has devolved into partisan fighting for years, the current impasse turned a corner after the recess appointments of two circuit court nominees earlier this year. In reaction, Daschle shut down the judicial nomination process on the floor, putting a blanket filibuster on potential federal judges.
Just four judges have been confirmed this year, and none to the hotly contested court of appeals. Senators knew that, historically, the closer the calendar edged toward a presidential election, the less likely it would be that judicial nominees would be confirmed to lifetime appointments — particularly if the party out of power at the White House feels its candidate could win and get to make his own appointments.
“If they didn’t cut the deal now, they’d get nothing,” said Sen. Joe Biden (D-Del.), a senior member of the Judiciary Committee who served as chairman or ranking member for 17 years.
GOP aides suggested that they had won the better part of the deal because — after the 25 judges are confirmed before the end of June — they will have seated 29 this year, plus the recess appointments of Pickering and Pryor. Republicans hope to continue confirming a few other judicial nominees cleared by Judiciary in the coming weeks, making it possible for perhaps three dozen nominees to be confirmed even as the confirmation process has become more politicized than ever.
In addition, Republicans expect to call cloture votes on some of the controversial nominees after Labor Day, when more voters — particularly the GOP’s activist base — are paying close attention to the election.
Republicans who back the deal suggest that it enables their party to get a number of judges confirmed while also allowing the GOP to continue labeling Democrats as obstructionist. “I suggest to you that [President Bush is] not really giving up on that much,” said Sen. John Cornyn (R-Texas).