April 16, 2008

Judges Deals & Discharge Petition

Tuesday was a big news day for the judges issue – perhaps the biggest since the confirmation of Justice Alito. Senate Leaders Reid and McConnell made a deal to confirm three appeals court nominees by Memorial Day; Sen. Levin and the White House reached an agreement to fill two long-standing vacancies on the 6th Circuit; and Sen. Specter asked Sens. Obama, Clinton, and McCain to declare their position on a possible motion to discharge three circuit nominees – Peter Keisler (DC Cir.), Bob Conrad (4th Cir.), and Steve Matthews (4th Cir.) – bottled up in the Judiciary Committee by Sen. Leahy.

Here’s our take on the day’s news, followed by excerpts from news reports. We believe Sen. Specter got it right – Keisler, Conrad, and Matthews are the nominees to focus on for a number of reasons. They were nominated to particularly important vacancies, have been pending in committee for a very long time, face no opposition from home state senators (the Leahy litmus test), and are being blocked for purely ideological reasons.

It follows that the devil is in the details of which nominees the Reid-McConnell deal will involve. We commend Sen. McConnell for using the highway funding bill as leverage to get a concession on judges from Reid, but we don’t yet know what to make of the deal. If “3 circuit confirmations by Memorial Day” turns out to include at least two of Keisler, Conrad, and Matthews, it’s a good deal. In contrast, Reid should not be allowed to claim credit for circuit court nominees whose selection or likely confirmation are already the result of deals with Democrats. Steven Agee (4th Cir.), Helene White (6th Cir.), and Ray Kethledge fall in that category.

Which brings us to the Michigan deal, involving two long-vacant Michigan seats on the 6th Circuit. Sen. Carl Levin agreed to stop blocking outstanding 6th Circuit nominee Ray Kethledge in return for the nomination of Levin cousin-of-law Helene White to the same court. That displaced another outstanding 6th Circuit nominee, Steve Murphy, who has now been nominated to the federal district court instead. Sen. Levin should be embarrassed that he has blocked 6th Circuit nominees for the last 7 years as “payback” for the breakdown of a deal to put White on the circuit a decade ago. But since Levin wasn’t going to get over his grudge anytime soon, the President was right to make the deal.

This morning, Republicans are going to the Senate floor to address Democrats’ obstruction of judicial nominees and yesterday’s deals. So there may be more news today.

Finally, we hope for a speedy recovery by Sen. Arlen Specter, one of the GOP’s leading voices on the judges issue.

News Excerpts:

"Specter wrote Sens. Barack Obama (D-Ill.), Hillary Rodham Clinton (D-N.Y.) and John McCain (R-Ariz.), seeking a direct response as to how they would vote on a motion to discharge three pending nominations from the committee. But Specter, rarely one to mince words, said he also wanted to “focus the public’s attention” on the impasse.” – The Hill, 04/15/08
“Dangling the popular highway funding bill as his hostage, Senate Minority Leader Mitch McConnell (R-Ky.) struck a deal Tuesday night with Majority Leader Harry Reid (D-Nev.) to dislodge a handful of President Bush's stalled appellate court nominees. Under the agreement, Reid and McConnell decided to advance at least three outstanding circuit court appointments before the Senate's Memorial Day recess, which begins May 23. … Reid said he couldn't make guarantees nor could he specify which judges would move forward, but he would do his best to follow through on the leaders' deal.” - Roll Call, 4/16/08 (emphasis added)
“The [Michigan] deal was reached by the White House and Democratic Sens. Carl Levin and Debbie Stabenow. … Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, called the agreement ‘a significant development that can lead to filling the last two vacancies on the Sixth Circuit before this year ends.’” – Associated Press, 4/15/08

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