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April 25, 2005
Snatching Defeat From The Jaws Of Victory, Part 12a

Senator Bill Frist appeared on the edge of victory this morning in forcing through the Bush nominees for federal appellate courts after a renewed push by GOP conservatives to get tough with the recalcitrant Democrats who have filibustered them. However, a late report from USA Today hints that Frist may have buckled under the pressure, considering an unprecedented arrangement that would allow two Democratic Senators to demand bench appointments for their cronies as a ransom for the up-or-down votes that Bush's nominees should already have received:

In private talks with Majority Leader Bill Frist, the Senate's top Democrat has indicated a willingness to allow confirmation of at least two of President Bush's seven controversial appeals court nominees, but only as part of a broader compromise requiring Republicans to abandon threats to ban judicial filibusters, officials said Monday.

At the same time he offers to clear two nominees to the 6th Circuit Court of Appeals for approval, officials said Sen. Harry Reid, D-Nev., wants a third appointee to be replaced by an alternative who is preferred by Michigan's two Democratic senators. ...

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 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.

This wavering demonstrates beyond a doubt that Frist cannot lead the Republicans as a majority party. Remember that this issue led the entire Senatorial campaign last year, and in 2002 before that, as their highest domestic priority. Conservatives and libertarians have broadly agreed that out-of-control judicial activism presents a danger to freedom and representative democracy, although they see the threat somewhat differently. The election of an increased Republican majority in the Senate directly resulted from that alliance -- a mandate to confirm justices with a stronger commitment towards constructionism.

Instead of restoring majority control to judicial nominations as mandated by the voters in two successive elections, however, it looks like Frist may surrender and validate supermajority thresholds for seating federal judges. Not only that, but Frist may go even further in his capitulation. Now the Democrats insist that Senators have the power to nominate judicial appointees in direct contravention of the Constitution. Frist may agree to let two Democrats from Michigan pick judges from their own provincial preferences, eliminating a presidential prerogative and fundamentally changing the balance of power even more significantly than the obstructionist filibusters ever did.

Hopefully, this idea dies the quick death it deserves. If the GOP leadership sells out its majority and undermine the Constitutional privileges of the executive, then we do not deserve to run the Senate. The NRSC will never see another dime from me, nor will any Republican who supports this kind of capitulation.

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Posted by Ed Morrissey at April 25, 2005 9:34 PM

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