Tuesday, May 24, 2005

Republicans Blink on Judicial Nominations...

A group of squish Rs have entered into an agreement with the Dems. It reads as follows:


We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate’s Judiciary Committee.

We have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Part II: Commitments for Future Nominations

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate. We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.
A careful reading of the above will reveal that there is a very serious problem with this agreement. All signatories commit to:
1. Refrain from using the filibuster* and
2. Oppose rules changes in the 109th Congress.

Note that, while there is a "*" next to the Dems commitment, there is no "*" next to the Reps commitment. What does the "*" represent? It represents an exception to the commitment made by the Dems. What is the exception? The exception is that the filibuster may be used in "extraordinary circumstances." And what is the standard for "extraordinary circumstances?" The standard is: each member's "own discretion and judgment." A lawyer will tell you that a contract that requires a party to do or not do something "according to his sole discretion and judgment" is not a contract at all. In other words, "extraordinary circumstances" exist whenever any member of the Senate determines, in his or her own discretion and judgment, that such circumstances exist.

In sum, the Republicans have agreed to oppose rules changes, period. The Democrats agree not to filibuster a nominee unless they, in their own discretion and judgment, determine that a nominee is sufficiently far from the mainstream that he or she deserves to be filibustered. We know from prior experience how difficult it is to meet that standard--not too tough.


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