Justice Choice Could Rekindle Filibuster Fight in the Senate

After a day of taking the accord at face value, the mainstream press is waking up to the fact that Monday’s agreement to end the judicial filibuster impass only kicked the can down the road.

Justice Choice Could Rekindle Filibuster Fight in the Senate (NYT RSS)

For all the euphoria Monday night that the political center had held, the Senate compromise in the judicial filibuster fight did not noticeably de-escalate the ultimate battle now looming: that over a potential vacancy on the Supreme Court. In fact, a new debate erupted almost immediately over the meaning of the agreement reached by seven Democrats and seven Republicans, which sought to preserve the right to judicial filibusters but restrict their use to “extraordinary circumstances.”

Republicans and their allies said the agreement made it much harder for Democrats to filibuster a Supreme Court nominee – particularly on the basis of the candidate’s judicial philosophy. After all, they argued, the accord explicitly cleared three appellate court nominees – all established conservatives – for floor votes. Democrats disagreed. “There’s nothing in anything that was done last night that prevents us from filibustering somebody that’s extreme, whether it’s on the district court, on a circuit court or the Supreme Court,” said Senator Harry Reid of Nevada, the Democratic leader.

Leading Democrats and their allies were highlighting another part of the agreement: what they asserted was a clear signal to President Bush that he needed to engage in “true consultation and cooperation” with both parties before naming future court nominees, particularly to the Supreme Court. “This agreement is a shot across the bow toward the president,” said Senator Charles E. Schumer, Democrat of New York. “Don’t pick someone too extreme or you’ll run into trouble.”

Administration officials and their allies pushed back, saying the agreement would have no effect on their powers to pick a nominee. Scott McClellan, the White House spokesman, said the administration would consult as it always had, signaling that it did not intend to change in any substantive way its method of selecting, vetting and nominating candidates for the federal bench, including the Supreme Court. The expectation at the White House, though, was that any Supreme Court nomination would still be a messy affair, even if the accord did make it harder for Democrats to filibuster on ideological grounds. That may end up driving opponents to look more intently for the personal or ethical grounds that would justify such a maneuver – the “extraordinary circumstances” the deal allows.

The fight over judicial filibusters has always been considered a proxy for the fight over the Supreme Court, where a vacancy is expected as early as this summer. Conservatives were furious over Democratic efforts to keep a handful of conservative nominees to appellate courts from an up-or-down vote on the floor; Democrats said they were simply exercising their rights as a minority and blocking judges who were outside the mainstream.

So, essentially, we’re right back to where we were Monday afternoon. Of course, you already knew that.

Steven Taylor is similarly unsurprised.

FILED UNDER: Congress, Law and the Courts
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.