Judges Battle: Now, November and in ‘09

No sooner did the Senate return from its Memorial Day recess last week, than the battle over judges re-erupted. It made for an interesting week, so let’s recap then take a look ahead.

Tuesday, the Wall Street Journal decried Senate Democrats’ obstruction of judicial nominees as “unprecedented in its stinginess,” and noted that “[w]e'll soon see if Republicans will take this lying down.” The answer came the next day, when GOP Senate Leader Mitch McConnell forced Senate clerks to read aloud the entire 491-page substitute amendment to the climate change bill. Kudos to Sen. McConnell, who explained that the tactic was intended “to give [Democrats] time to contemplate and consider the importance of keeping your word in this body.”

McConnell was referring to Majority Leader Harry Reid’s broken promise to confirm three appeals court nominees before the Memorial Day recess, as well as Reid’s sure-to-be-broken earlier promises to meet the historical average (17) for appeals court confirmations by an opposition Senate in a president’s final two years. In fact, McConnell noted, judicial confirmations are proceeding at a historically slow pace:

"If you look at judicial confirmations in a presidential year, you have to go back to 1848, … Zachary Taylor, to find the last time the pace has been this slow."

Of course, what Senate Democrats have mind is 2009 rather than 1848, as Sen. John Cornyn explained last week:

"It is becoming increasingly clear that the majority party is … attempting to run out the clock in hopes of a Democratic President appointing hard left, judicial activists in 2009. We will not let this happen." (emphasis added)

But Democrats should not count their judicial activists before they’re confirmed. As noted by the Washington Times, Sen. McConnell “issued the starkest threat to date that Republicans will retaliate next year if a Democrat wins the White House.” Specifically, McConnell said

"It strikes me it's to their advantage to defuse this issue, because around here, what goes around comes around. That's happening today. It could happen next year. Surely, they're not so shortsighted as to think, 'Goodness, just a few months from now we could be processing nominees that we like.'"

Moreover, a fight over judges may be just what the GOP needs to avert an Obama presidency:

"[T]here are few better political fights for Republicans than over judicial nominations. A new Rasmussen study shows that the type of Supreme Court Justices a residential candidate would appoint outranks even the war as a priority among GOP voters." – Wall Street Journal, June 3

Some conservative leaders have said [the judges issue is] reason enough for them to overcome their misgivings and support presumptive Republican presidential nominee Sen. John McCain, who has promised to nominate conservative judges. - Washington Times, June 5

However, with the ideological balance of the all-important Fourth Circuit on the line, along with other critical vacancies, there are more immediate concerns than November’s election. Of greatest concern is confirming one or more of the Big Three nominees: Bob Conrad (4th Cir.), Steve Matthews (4th Cir.), and Peter Keisler (DC Cir.). The key will be whether GOP senators remain resolute, and so far the signs are good. When Wednesday’s slowdown produced only a little movement on Reid’s part – specifically, an agreement to hold confirmation votes for three district court nominees – Sen. McConnell continued to press Democrats by refusing to give consent for Senate committees to meet while the Senate was in session Thursday. McConnell promised to keep up the fight until Democrats back down from their obstruction of judicial nominees, saying

"Republican [senators] will continue to make the point that judicial nominations need to be treated fairly, and that commitments in this body need to be kept, and we will use the tools available to the minority to do so until that proves to be the case. This is not over I assure you."

Sen. McConnell can’t do it alone, but fortunately, his GOP colleagues are behind him:

One thing is clear: McConnell has the support of a majority of his caucus over the issue of nominees, according to numerous GOP aides. Republicans feel this is a strong campaign issue for them that always rouses the party base. – FoxNews.com, June 5

As McConnell noted, there is only one solution to the rising tensions over judicial confirmations: “Seven by the end of this year." Seven additional appeals court confirmations would yield a total of 15 in the 110th Congress, short of the 17 promised by Sen. Reid but equal to the number in President’s Clinton final two years.

As the Wall Street Journal explained, Republicans had hoped the ‘three by Memorial Day’ agreement with Reid would get us to at least 12 appeals court confirmations in the 110th:

"Republicans thought their deal with Mr. Reid was for two nominees in addition to the Michigan pair [who were part of another deal] – but with the Majority Leader, you have to read the fine print of any handshake."

As it turns out, Reid didn’t even abide by the deal’s bold type. Neither the Michigan pair – Helene White and Ray Kethledge – nor the other nominees Republicans had in mind –Conrad, Matthews, and Keisler – were confirmed by Memorial Day, so appeals court confirmations remain at eight.