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June 13, 2005
Not One Dime: The New Democratic Strategy

For those who thought that the filibuster had been rendered nearly extinct for executive appointments, the Washington Times reports that the Democrats have instead reworked their PR campaign to present another rationale for restarting them. Rather than argue about "extremism" -- an argument that they lost on the merits -- Democrats will now produce endless requests for more documentation in an effort to convince Senators that the Democratic filibusters support Senatorial privilege:

The new filibusters are not based publicly on ideologies -- as with several of the nominees to the federal bench -- but on demands for additional information from the administration.

Already stalled under that strategy is John R. Bolton, Mr. Bush's pick to be ambassador to the United Nations.

Also, Democrats led by Sen. Edward M. Kennedy of Massachusetts stopped a federal appeals court nominee last week by demanding that more of his unpublished legal opinions be provided to them.

Mr. Bush nominated U.S. District Judge Terrence W. Boyle of North Carolina more than four years ago to the 4th U.S. Circuit Court of Appeals, based in Richmond. Judge Boyle had a hearing more than three months ago and has been scheduled numerous times for a Senate Judiciary Committee vote.

Last week, however, Democrats on the Judiciary Committee demanded that Judge Boyle's nomination wait another week and that the Bush administration produce more of his unpublished opinions. Committee Chairman Arlen Specter, Pennsylvania Republican, reluctantly agreed.

This is the hole in the compromise which allowed for filibusters under "extraordinary circumstances". The Democrats used this same strategy on Miguel Estrada, requesting his legal work product from the Clinton administration. Even though that request received loud criticism from the legal community as an unprecedented incursion on executive privilege -- from Democrats and Republicans alike -- the Senate Democrats continued to blockade Estrada with that excuse until he finally quit in disgust.

Now, instead of having to make arguments about the qualifications of nominees and complaints about their politics, which left Democrats open to charges about overly politicizing judicial confirmations, they will keep requesting more and more documents to stall nominations as long as possible. Once the White House draws the line on unnecessary disclosure, Senate Democrats will filibuster and claim that the action restores the balance between the executive and legislative branches. That argument will have more appeal to the centrists that formed the Gang of 14 to stop the GOP from ruling filibusters out of order on judicial nominations, or so the Democrats hope.

Unfortunately, they're probably correct. As the Bolton filibuster shows, the GOP haven't yet developed an effective response to this stall tactic, despite its earlier use on Estrada. It also shows the lack of good faith on behalf of the Democrats in embracing this supposed era of comity on nominations. The strategy should be to force the candidates out of committee by ignoring these frivolous requests, and then forcing the Democrats to use the filibuster in the open. Specter made a mistake giving in to Kennedy on Boyle's nomination; he should correct that as soon as possible and call for the committee vote immediately.

NOD logo update: I've received a number of outstanding designs for the campaign logo. As mentioned earlier, I'm accepting designs until the 15th, and then I'll start displaying them in a series of posts over the following few days. I'll put up a Pollhost poll for CQ readers to select the winners from five or so of the best, as selected by me. Thanks to everyone who contributed their creativity and talent!

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Posted by Ed Morrissey at June 13, 2005 12:05 PM

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