Reid and Frist Working on Judicial Vote Compromise

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.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. DeWaun says:

    This is absolutely a no-win deal for the future of conservatives or even “Republicans”. This, in my opinion, is not the time to compromise, but to vanquish this enemey of the Constitutional process. The “filibuster” isn’t the enemy…it’s the Leftist idea that Judicial nominees shouldn’t be allowed to receive a legitimate up or down vote in the Senate. That’s the enemy…not the filibuster.

    A Republican compromise on this issue will mean some seriously large amounts of pissed off American conservatives. And there’s a lot of us out there.

  2. Barry says:

    “The “filibuster” isn’t the enemy…it’s the Leftist idea that Judicial nominees shouldn’t be allowed to receive a legitimate up or down vote in the Senate. That’s the enemy…not the filibuster.”

    I guess that your history books start with Bush’s first inauguration, then. IIRC, about 60 of Clinton’s nominees never got a legitimate up or down vote in the Senate.

  3. McGehee says:

    Barry, apparently your history books begin when Clinton took office, and leave out certain salient facts.

    Every single Clinton judicial nominee who was approved by the judiciary committee got an up-or-down floor vote.

    Not every nominee got approved by the committee. Some, it is true, didn’t even get hearings — because both of the nominee’s home-state Senators objected. This practice is a holdover from Democrat control and cannot be blamed on the Republicans.

    In fact, if I remember correctly, the requirement that both home-state Senators object before a nominee be denied a hearing, was altered by Daschle in 2001 after Jeffords gave him back control of the Senate, so that it only took one home-state Senator to block a hearing.

    I seem to recall talk of a proposal, once Republicans regained control, to end the practice entirely, but I don’t know what came of it. James?

  4. From the Left says:

    Someone call the irony police. Senator Isakson (R-GA) stood in the well of the U.S. Senate and extolled the virtues of the fillibuster as the “secret weapon” of the minorities in the new Iraqi government. The video/audio links can be found over at “Swing State Project” if anyone wants to listen to or watch the clip.

  5. Barry says:

    McGehee, good point. I’ve found several references where it was mentioned as being occasionally used by the Democrats. Nothing on the order of 60 nominations stopped, though. When 60 of Bush’s nominations are stopped through fillibustering, then the right will have a moral leg to stand on. Not till then, though.

    And ‘Every single Clinton judicial nominee who was approved by the judiciary committee got an up-or-down floor vote’ is just sleight of hand. The GOP enthusiastically used a non-democratic method to stop people from becoming judges. A method less democratic than a fillibuster. A method which Hatch suddenly developed a distate for when the Democratic Senators had a chance to. It isn’t even original – I found a comment on where somebody defended it, while denouncing the fillibuster as non-democratic

  6. McGehee says:

    When 60 of Bush’s nominations are stopped through fillibustering, then the right will have a moral leg to stand on.

    I’m interested to see the news accounts of Republicans using the filibuster to stop 60 Clinton nominations. When you can show me that, I’ll accept your flimsy attempt at moral equivalence argument.