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One Last Chance on Judges?

Senate Republicans and Democrats are locked in a monumental struggle over President Bush’s nominees to the federal appellate bench. A number of politically moderate Senators are feverishly attempting to craft a solution that will prevent detonation of the “nuclear” option — the procedure that would allow a simple majority of Senators, rather than two thirds, to approve a prohibition on judicial-nomination filibusters.

Igniting this option would dramatically change the Senate’s character now, and perhaps forever. Its use would halt or slow critical, substantive business in the short term, and it would undermine the power of the Senate minority — which at the moment represents a majority of the American population — to express its views in the future.

To avoid these risks, Republicans and Democrats should agree to the following solution: Up or down votes should be held for all of the present appellate nominees, except for two of the four whom Democrats consider most controversial.

Those four nominees are Janice Rogers Brown, William Myers, Priscilla Owen and William Pryor. Republicans and Democrats would each choose one individual whose nomination would not receive an up or down vote. The remaining appellate nominees would receive votes after extended Senate floor debate.

Democrats would also agree to filibuster only in extraordinary circumstances. Filibusters would, under this agreement, be reserved for nominees whom Democrats deem are outside the legal mainstream.

In addition, when Supreme Court vacancies occur, a bipartisan group of Senators would select a pool of acceptable candidates and forward their names to Bush, who may either select a nominee from that pool or choose someone else.

Should the president find this process unpalatable, or the candidates tendered unacceptable, Bush might seriously consider attaining a similar result through consultation. If the chief executive were to informally broach potential high court nominees with Democrats before formally nominating them — as then-President Bill Clinton did with Justices Ruth Bader Ginsburg and Stephen Breyer — Bush could effect a smoother, less divisive confirmation process than now appears imminent. Filibusters would remain unchanged until 2009.

This agreement seems to strike a fair compromise. Republicans would receive votes on all but two of the present nominees, a number of whom are controversial. Democrats, for their part, will receive extended Senate floor debate in which they can attempt to persuade moderate Republicans to vote against nominees who are sufficiently controversial.

The nuclear option would thus be defused and its use postponed until a later presidency and a later Senate — if it is implemented at all.

The proposed bipartisan Senate group that would recommend acceptable Supreme Court candidates for presidential consultation should similarly be able to temper the discord that has been brewing over the next high court vacancy and which has been driving the ongoing controversy over filibusters.

These ideas would help restore a measure of civility to present discourse, preserve the Senate’s traditions over the long term and restore a modicum of public respect for the chamber, the executive and the judiciary.

Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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