The fate of Monday’s agreement defusing the Capitol Hill confrontation over judicial nominations may now rest as much in the hands of President Bush as in those of the senators who crafted it.
The dramatic deal by a bipartisan group of 14 senators produced immediate results Tuesday: The chamber voted to end a Democratic filibuster of Texas Supreme Court Justice Priscilla R. Owen. Her long-stalled nomination to the U.S. 5th Circuit Court of Appeals is expected to be confirmed today.
Some who forged the deal expressed hope that the agreement would create momentum for compromise on other knotty issues, such as Social Security and immigration.
“Watch this group when it comes to major problems that the nation faces, like Social Security,” Sen. Lindsey Graham (R-S.C.) said. “I think we have created momentum for the idea that if you constructively engage each other, the political reward is high.”
The group brokered a compromise in which seven Republicans agreed to oppose a Senate rule change to end the judicial filibuster and seven Democrats agreed to use the tactic against future nominees only in “extraordinary circumstances.” But the agreement could prove short-lived if future judicial appointments provoke partisan conflicts similar to those that erupted over the current nominees.
The deal, both sides say, will face its greatest strain should a vacancy open on the Supreme Court. That could happen as soon as this summer, when many expect ailing Chief Justice William H. Rehnquist to retire.
“The Supreme Court is probably where this comes to a head,” said Gary Marx, executive director of the Judicial Confirmation Network, a conservative group supporting Bush’s nominees.
If the president chooses a polarizing figure for the high court, the seven Democrats would face enormous pressure to support a filibuster -- and that would pressure the seven Republicans to reverse direction and back the filibuster ban.
Graham and Sen. Mike DeWine (R-Ohio), another negotiator of the agreement, indicated in interviews Tuesday that they would support banning the judicial filibuster if they believed that Democratic use of the stalling tactic did not meet the “extraordinary circumstances” standard.
With the arrangement in such a precarious balance, the crucial factor governing its survival may be Bush’s reaction to the group’s request that he consult more closely with senators of both parties on his judicial nominations, particularly one for the Supreme Court.
“It totally depends on Bush,” said Ron Klain, who as deputy White House counsel and Justice Department chief of staff helped guide two Supreme Court nominations for President Clinton. “If Bush picks someone for the Supreme Court who is middle-of-the-road ... that person is going to get confirmed easily, and then this agreement will hold. If Bush chooses a different course and picks someone of an ideological stripe like these more controversial appellate court nominees, this agreement ... will unravel very shortly after that.”
Supporters and critics of the deal were united Tuesday on one point: Its effect will be determined by how it affects future nomination fights.
The deal establishes conditions for handling only five appellate court nominations. It guarantees up-or-down votes for Owen, California Supreme Court Justice Janice Rogers Brown and former Alabama Atty. Gen. William H. Pryor Jr. -- all of whom now are virtually certain to be confirmed. And it explicitly notes that participants have not agreed to oppose a filibuster on two others: Henry W. Saad, a judge on the Michigan state appeals court, and William G. Myers III, an Idaho lawyer and former U.S. Interior Department solicitor. Both are expected to be defeated.
The compromise does not directly deal with seven other appellate court nominations Bush sent to the Senate in February. Sources on both sides said they expected four to win confirmation: U.S. District Judge David W. McKeague and Michigan state court Judges Richard A. Griffin and Susan B. Neilson, all nominated to the U.S. 6th Circuit, and Utah lawyer Thomas B. Griffith, chosen for the powerful U.S. Court of Appeals for the District of Columbia.
Brett M. Kavanaugh and William J. Haynes II, nominated for the D.C. and 4th circuits, respectively, face longer odds.
On Tuesday, Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, named the nominees he expected to be approved; he pointedly omitted Kavanaugh and Haynes.
Kavanaugh, a White House official and former aide to Whitewater special counsel Kenneth W. Starr, has faced criticism that he lacks experience. The nomination of Haynes, the Pentagon’s general counsel, was stalled during Bush’s first term amid questions about his role in devising administration policies for handling detainees in the war on terrorism.
Senate aides said there were no expectations about how the deal would affect U.S. District Judge Terrence W. Boyle, another Bush nominee to the 4th Circuit, although Specter included him among those he expected to advance quickly.
Disputes about the handling of those nominees, or future nominees for six other appellate court vacancies, could threaten the deal. But a more likely battle is if Democrats were to filibuster a Bush Supreme Court nominee.
DeWine was unequivocal in insisting that if Democrats filibustered a judge he did not believe met the “extraordinary circumstances” standard, he would switch his vote to support changing filibuster rules.
“If I felt their action in filibustering any judge, including a Supreme Court judge, was beyond the bounds ... I certainly would have every right to, and would, vote yes on a motion” to ban the judicial filibuster, the senator said.
The potential for friction was apparent in the initial efforts to define those boundaries. Republicans, including critics of the deal such as Sen. John Cornyn of Texas and conservative judicial advocate Marx, argued Tuesday that the Democratic willingness to accept Owen, Brown and Pryor -- all staunch conservatives -- meant that the nomination of someone equally conservative to the Supreme Court would not satisfy the deal’s “extraordinary circumstances” standard.
Democrats resisted that interpretation.
“Conservatives are trying to ascribe a meaning to an agreement that doesn’t exist,” said David DiMartino, spokesman for Sen. Ben Nelson of Nebraska, the principal Democratic negotiator of the agreement.
Graham seemed to side with the critics’ assessment when he told reporters: “The fact that you’re a conservative is no longer an extraordinary circumstance.”
But like many of those involved, Graham said the agreement was likely to send a clear signal to Bush that senators in both parties wanted more consultation over court appointments.
“I think the president needs to get the message that more collaboration is better,” Graham said. “We’ve got to understand that you expect the president to send conservative judges over. The question is whether we can find common ground and someone acceptable.”
Likewise, Sen. Susan Collins (R-Maine), who also signed the compromise, said: “The White House might have an easier time winning prompt confirmation if it consulted more with members of the Senate.... There is a feeling that in the past, the Senate was more involved in giving suggestions and signing off on nominations than it is now.”
Administration aides, speaking on condition of anonymity while discussing White House strategy, rejected the suggestions that Bush needed to consult more with the Senate or pick less controversial judicialnominees. “You’re not going to see the president change his ideology,” one said.
If that means Bush’s future nominees divide the parties as sharply as those in the current group, this deal may promise the Senate not a lasting peace but just a break in the battle.
Few in either party disagreed with Sen. Orrin G. Hatch (R-Utah), a former Judiciary Committee chairman, when he declared Tuesday: “This is merely a truce; it’s not a treaty.”