Judges Showdown Looms as May 6 Deadline Approaches

The battle in the Senate over stalled judicial nominees moved closer to a climactic showdown Tuesday as Sens. Mitch McConnell and Arlen Specter made it clear that Democrats must include long-obstructed nominees Peter Keisler, Bob Conrad and Steve Matthews in the deal to confirm three appeals court nominees by Memorial Day. It is particularly important that the demand came from Minority Leader McConnell and Judiciary Ranking Member Specter, because McConnell negotiated the deal and because he and Specter are precisely the two senators who can make Democrats pay a price in the Judiciary Committee or on the Senate floor if the Democratic leadership attempts to gut the deal.

In a letter to their Democratic counterparts -Majority Leader Reid and Judiciary Chairman Leahy - McConnell and Specter decried Leahy’s avowed intention to renege on the deal unless it can be fulfilled by confirming his “preferred queue of nominees,” namely 4th Circuit nominee Steven Agee and 6th Circuit nominees Helene White and Ray Kethledge. Leahy prefers those nominees because they are already part of other bipartisan deals and, thus, would allow Democrats to superficially fulfill their commitment without compromising on the seven appeals court nominees they are obstructing.

Noting that the FBI reports and ABA ratings for White and Kethledge will be not be ready in time for pre-Memorial Day confirmations, McConnell and Specter said they were troubled by

“Chairman Leahy’s statements insinuat[ing] that, if the Committee cannot process Judge White and Mr. Kethledge prior to the recess, then the straightforward commitment made by the Majority Leader and, by reference, Chairman Leahy will not be honored.”

It follows, Sens. McConnell and Specter said,

“that, in order to fulfill the commitment, Chairman Leahy [should] turn to other outstanding circuit court nominees pending in Committee who have been ready for hearings and waiting far longer than Judge White or Mr. Kethledge.”

Specifically, McConnell and Specter called on Leahy “to schedule hearings for Judge Conrad and Mr. Matthews, and hold a Committee vote for Mr. Keisler as soon as possible,“ calling it “simply a matter of fairness to include in the commitment, nominees who clearly can be processed and who have been ready for hearings and pending the longest.” Keisler has been pending in Committee for nearly two years, while Conrad and Matthews have been waiting for more than nine and seven months respectively.

Specter and McConnell emphasized that Democrats have less than a week to avoid a breach of the Memorial Day deal:

“The clock is ticking. … If the Committee does not hold a hearing for two circuit court nominees [in addition to Agee] prior to May 6, 2008, it is exceedingly unlikely that the Senate will be able to confirm at least three circuit court nominees prior to May 23, 2008 [the last day before recess], given the standard amount of time it takes to move a nomination through the steps in the confirmation process.” (emphasis added)

This sets up a dramatic showdown as soon as next week, as we’ll know by May 6 if Leahy and Reid intend to break the deal. If the May 6 deadline is missed, there’s no reason for the Republican leadership to wait until Memorial Day to make Democrats pay a price.

We thank Sens. McConnell and Specter – as well as the other GOP members of the Judiciary Committee – for insisting that Peter Keisler, Bob Conrad and Steve Matthews be included in the Memorial Day deal. And we encourage you to thank them as well.