Outside the Beltway

Reid and Frist Working on Judicial Vote Compromise

James Joyner · Tuesday, April 26, 2005 · 6 comments

Sources report that Democratic Minority Leader Harry Reid has proposed a compromise wherein he would be given some of the powers of the president in exchange for allowing the constitutionally prescribed vote for judicial nominees that he’s not terribly opposed to.

Frist, Reid Work on Judge-Approval Deal (AP)

Senate Democratic leader Harry Reid is quietly talking to the Senate’s chief Republican about confirming at least two of President Bush’s blocked judicial nominees but only as part of a compromise that would require the GOP to end its threat to eliminate judicial filibusters, officials say. Reid also wants a concession from Senate Majority Leader Bill Frist, officials said speaking on condition of anonymity: the replacement of a third Michigan nominee with one approved by that state’s two Democratic senators. At the same time, these officials say Reid remains opposed to four conservative candidates for other appellate circuits, Priscilla Owen, Janice Rogers Brown, William G. Myers III and William H. Pryor Jr.

Senators would not confirm details Monday, but Reid said that he has had had numerous conversations with senators in both parties in hopes of avoiding a showdown. “As part of any resolution, the nuclear option must be off the table,” Reid said in a statement referring to the GOP threat to change filibuster rules.

The officials spoke only on condition of anonymity, citing the confidential nature of the conversations between the two leaders. But Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, said Sunday there had been a “a lot of negotiations to try to get three judges from Michigan” confirmed. Other senators have referred vaguely in recent days to discussions surrounding Bush’s nominations to the 6th U.S. Circuit Court of Appeals, whose jurisdiction includes Michigan.

This comes as senators try to negotiate their way out of a looming confrontation over whether Democrats can block Bush’s judicial nominees through filibuster threats. Republicans have threatened to use their majority to change long-standing senatorial rules that Democrats used to block 10 of Bush’s first-term appeals court nominations. They fear a Democratic blockade could affect a Supreme Court vacancy if a high court seat opens in Bush’s second term. Democrats, who argue the nominees are too conservative to warrant lifetime appointments to the nation’s highest courts, have threatened to block the seven nominees Bush sent back after winning re-election and any others they consider out of the mainstream.

Officials said as part of an overall deal, Reid has indicated he is willing to allow the confirmation of Richard Griffin and David McKeague, both of whom Bush has twice nominated for the 6th U.S. Circuit Court of Appeals. At the same time, the Democratic leader wants the nomination of Henry Saad scuttled. Democrats succeeded in blocking all three men from coming to a vote in 2004 in a struggle that turned on issues of senatorial prerogatives as well as ideology.

Surely, the Republican leadership will reject this nonsense out of hand. Indeed, this proposal makes starkly clear that this fight is a power grab by the Democratic minority rather than a fight over principle.

The Constitution makes it crystal clear that the president has the sole authority to appoint federal judges, with the advice and consent of the Senate. All of these nominees apparently have majority support in the Senate; otherwise the Democrats would gladly allow a vote that would embarrass President Bush. Having congressional leaders from the opposition party effectively appoint judges would turn this process on its head.

It’s true that, as a matter of practice, home state senators from a president’s own party have had an effective veto on district court nominees under “senatorial courtesy.” The rationale for that, though, is simply that other senators would defer to the judgment of the senator that presumably knew the candidate best and would vote the same way. Reid’s proposal, though, would give this power to senators from the opposition party–and one in the minority at that. This would ensure that ideology and/or naked partisanship would be the deciding issue, rather than reputational issues. This should be a non-starter, pure and simple.

Update (1355): Frist Says He’s Not Interested in Deals (AP)

Reacting to a Democratic offer in the fight over filibusters, Republican leader Bill Frist said Tuesday he isn’t interested in any deal that fails to ensure Senate confirmation for all of President Bush’s judicial nominees. Senate Democratic leader Harry Reid had been quietly talking with Frist about confirming at least two of Bush’s blocked nominees from Michigan in exchange for withdrawing a third nominee. This would have been part of a compromise that would have the GOP back away from a showdown over changing Senate rules to prevent Democrats from using the filibuster to block Bush’s nominees. But Frist, in a rare news conference conducted on the Senate floor, said he would not accept any deal that keeps his Republican majority from confirming judicial nominees that have been approved by the Senate Judiciary Committee. “Are we going to step back from that principle? The answer to that is no,” Frist said.

That means he and Reid are still at deadlock, because Democrats have said they would not accept any deals that would permanently ban them from blocking Bush’s nominees to the Supreme Court or the federal appellate courts, the top two tiers of the judicial system. “As part of any resolution, the nuclear option must be off the table,” said Reid, referring to the GOP threat to change the filibuster rules.

Good for Frist for showing some backbone.