SUCH A DEAL

Senators test extent of deal on nominees (Rick Klein, Boston Globe, 5/25/05)

A day after a coalition of moderate senators signed an agreement to avoid a partisan clash over judicial nominations, both liberal and conservative senators began to test its limits, with each side serving notice that the Capitol Hill culture war over confirming judges is not over. . . .

Democrats . . . for their part, celebrated a deal they said defused the ''nuclear option" -- a change in rules that they said would strip them of their right to filibuster judicial nominees and force them to retaliate by slowing Senate business to a crawl.

But some lawmakers predicted that the extraordinary agreement will collapse under its own weight, mainly because Democrats remain free to use the filibuster under ''extraordinary circumstances," and Republicans can still join Senate Majority Leader Bill Frist and vote for a filibuster ban if the Democrats renege on the deal.

"This agreement among these 14 -- to which 86 senators were not a party -- does not solve anything," said Senator John Cornyn, Republican of Texas. "What it does do is perhaps delay the inevitable."

The biggest problem, several senators said, lies in the definition of ''extraordinary circumstances," a phrase left purposefully vague to help the deal get done, according to one senator involved in the negotiations. Without a precise definition, senators can interpret that threshold on their own -- and they may get that opportunity early next month.

That's when Frist, under intense pressure from angry conservatives, may force a vote on the appellate court nomination of William G. Myers III, a conservative chosen for the left-leaning Ninth Circuit Court of Appeals in San Francisco. Democrats, who say he's a pro-business jurist with no regard for the environment, defeated his nomination by filibuster last year, and have promised to do the same this year.

''He'll be brought up in the normal course of order, and we'll find out if he's 'extraordinary' or not," said Senator Larry E. Craig, Republican of Idaho, Myers's home state. ''There's really no deal until it plays out at length."

Added Senator George Allen, Republican of Virginia: ''I'm disappointed in the deal. I don't feel at all bound by it. William Myers should be accorded a vote. That may be when we have the battle." . . .

Democrats and Republicans yesterday offered vastly different interpretations of the settlement, reflecting its tenuous hold on the signatories. Democrats insisted that Republicans have guaranteed they won't try to ban filibusters for the rest of the 2005-2006 Senate term, but Republicans said that promise depends on whether the Democrats stick to the deal. . . .

''Let me be very clear: The constitutional option remains on the table," Frist said in a speech on the Senate floor. ''I will not hesitate to use it if necessary."

If the Democrats filibuster Myers, it could pressure the Republicans involved in Monday's negotiations to change tack and support the rules change Frist is seeking. If the deal holds, Frist wouldn't have enough votes to change the rules, but if just two GOP senators from the deal changed their minds, it would shift the balance of power.

Yesterday, Senators John McCain of Arizona and Lindsey O. Graham of South Carolina -- two key Republicans who helped hammer out the last-minute compromise -- wouldn't say what they would do if their Democratic colleagues joined a filibuster of Myers. McCain said he wasn't familiar enough with Myers's record to respond, and Graham said he would deal with the situation if it happens. . . .

Kennedy, a senior member of the Judiciary Committee, said he believes Bush will select a [Supreme Court] nominee the Democrats can accept, but Democrats will use the filibuster against any candidate they believe isn't qualified.

''We still have that right, sure do, and I don't have any hesitancy," Kennedy said.

So the upshot is that the Democrats think that the nuclear option is off the table and that they can still filibuster nominees, including to the Supreme Court and including on ideological grounds. McCain and Graham agree, depending on ill-defined circumstances. I preferred it when no one knew what the deal meant.

Posted by David Cohen at May 25, 2005 12:11 PM