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May 16, 2005
New Offer: Throw Less People Under The Bus

The Senate Democrats have reportedly made a new offer to the GOP to avert a showdown over the use of the filibuster to block nominees to the federal court. They sweetened the same offer made last week to confirm three nominees to five today, and specifically picked three that they will now demand be withdrawn from consideration, in return for a pledge to forego future filibusters except in "extreme circumstances":

With a showdown looming, a small group of Senate Democrats floated a compromise Monday on President Bush's stalled judicial nominees, offering to clear five for confirmation while scuttling three others.

Under the proposal, circulated in writing, Republicans would have to pledge no change through 2006 in the Senate's rules that allow filibusters against judicial nominees. For their part, Democrats would commit not to block votes on Bush's Supreme Court or appeals court nominees during the same period, except in extreme circumstances.

Officials who spoke on condition of anonymity said that Democrats involved in the compromise would vote to end any filibuster blocking a final vote on Richard Griffin, David McKeague and Susan Neilson, all named to the 6th U.S. Circuit Court of Appeals.

Democrats would also clear the way for final votes on William H. Pryor Jr. for the 11th Circuit Court of Appeals and Janice Rogers Brown for the U.S. Circuit Court of Appeals for the District of Columbia. Both are among the nominees most strongly opposed by organized labor as well as civil rights and abortion rights groups and others that provide political support for the Democratic Party.

Three other nominations would continue to be blocked under the offer: those of Henry Saad to the 6th Circuit Court, Priscilla Owen to the 11th Circuit and William G. Myers III to the 9th U.S. Circuit Court of Appeals.

The messenger boy this time was Ben Nelson, a moderate Democrat in the deep-red state of Nebraska whose seat looks particularly at risk in 2006 if he continues to support the filibusters. He made the offer to Bill Frist over dinner last night after getting Harry Reid's approval. It contrasts with last week's offer in that the GOP gets four of the seven nominees past the blockade, and allows for an additional nominee expected to be filibustered to get through without a fight. The new offer also eliminates the offensive "pick your favorite nominee" game that exposed the Democrats' hyperbole about extremists on the court as a partisan joke.

Frist should and will pass on this latest offer. It does nothing to address the issue of the minority expropriating the Constitutional duty and privilege of nominating candidates from the executive, nor does it restore majority rule in the Senate on judicial confirmations, a tradition for over 200 years. And as even Trent Lott pointed out today, it still leaves the Democrats an excuse for further filibustering:

As for the current offer, said Sen. Trent Lott, R-Miss., "The problem with what you're talking about is the use of the words 'extraordinary' or 'extreme circumstances.' How would that be defined? And, by the way, who would make that determination? That's very difficult to do."

I find it highly interesting that the Democrats now consider Janice Rogers Brown and William Pryor to be acceptable for the federal appellate bench. Remember, only a few days ago Reid referred to these nominees as "bad people" and told Nevada schoolchildren that Brown wanted to take America back to "Civil War days". Either they're willing to pay that price to hang onto their newfound obstructionist tactic, or Reid likes to lie to schoolkids. Take your pick of cynicism, but there's no third choice.

At the end of the day, Frist has one last card to play that no one has yet discussed, one that could truly prove to be the "Constitutional" option. In the face of continued filibusters, Frist could declare that the Senate has defaulted on its duty to provide appropriate advice and consent to the Executive -- and declare that the nominees therefore have been approved in absence of rejection. That would trigger a true Constitutional crisis that would require the Supreme Court to review and decide ... the same justices who want to retire in peace, and sometime soon.

Fasten your seatbelts, folks, this will be a very bumpy and interesting ride.

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Posted by Ed Morrissey at May 16, 2005 4:01 PM

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