May 25, 2005
THEY GAVE HIM A SWORD:
Senate Truce Faces Test of Bush's Next Nominations: A polarizing choice, especially for Supreme Court, could unravel the deal, both sides say. (Ronald Brownstein and Janet Hook, May 25, 2005, LA Times)
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. [...][T]he 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."
The White House will use the Gang to see if the 7 Democrats can be duped into offering compromises on SS and taxes, but then the President, nevermind appointing a conservative Court nominee, will make a few recess apopointments this Summer that blow up the deal. Posted by Orrin Judd at May 25, 2005 8:43 AM
Now you're sounding more reasonable: it's true that the Republican President, Republican House, and 48 Republican Senators who are not party to the deal have the resources to win something. However, the President's hand has been weakened in winning judicial fights - now he has to fight with only a 48-45 advantage in the Senate, since 7 Republicans unilaterally disarmed. So he has to pressure the moderates to make up for giving Dems a victory on judges by giving him victories on policy. For policy, he still has 55 Republicans.
Posted by: pj at May 25, 2005 9:04 AMIf Democrats feel they can win the presidency in 2008, they might not mind those recess appointments too much and the deal could survive until the first Supreme Court nomination
Posted by: Daran at May 25, 2005 9:17 AM"... will make a few recess apopointments this Summer that blow up the deal."
Hope you're right.
Posted by: erp at May 25, 2005 9:19 AMAs I posted the night of the "compromise." Bush should wait until all 3 are confirmed, and re- nominate Estrada.
Both sides of the malignant 14 will squirm and the issue will still be alive in 2006 races.
Also Bush should use a speech in the near future to utterly repudiate the "advice language" of the "deal."
Posted by: BB at May 25, 2005 9:47 AMBret Kavanaugh, a nominee for the DC Circuit, is light experience and might have had tough sledding anyway. AFAIK, htere are no other current vacancies on that Circuit. The White House could pull him down and send Estrada back up, but I am not so sure they would even if he agreed to go through the process again.
The last day before the S. Ct. takes its summer recess is June 27. The Congress will be in its July 4 recess, or close o it. I think a recess appointment or appointments is likely. Eisenhower did it twice.
Posted by: Dan at May 25, 2005 10:05 AMDan:
But he was White House staff, so W will recess appoint him.
Posted by: oj at May 25, 2005 10:30 AMOJ:
No, he was in SG office in DOJ during the Clinton years. He was then with Gibson Dunn & Crutcher's DC office. As I posted in another thread, he might not be on best of terms with WH.
Posted by: Dan at May 25, 2005 10:36 AMWhat is utterly hilarious is the thought that Rhenquist is in any sense a moderate who needs to be replaced by a moderate to keep the court's balance.
Posted by: Arnold F Williams at May 25, 2005 10:48 AMOJ:
The downside to the Internet Age is that sometimes even the dinosaur liberal media picks up on the obvious within 48 hours.
Posted by: Matt Murphy at May 25, 2005 11:01 AMDan:
http://www.independentjudiciary.com/news/release.cfm?ReleaseID=82
Posted by: oj at May 25, 2005 11:15 AMOJ:
Misunderstanding. I thought you were talking about Estrada.
Posted by: Dan at May 25, 2005 11:29 AMIs Dan suggesting that the President would issue a recess appointment to the Supreme Court and then send the name up? Interesting. He or she could serve until the end of 2006 (meaning one full SC June to June term). Either the new justice gets confirmed by that time or the President nominates someone else with perhaps more GOP senators. Is such a course a good one or not?
Posted by: Bob at May 25, 2005 12:25 PMI meant October to June term.
Posted by: Bob at May 25, 2005 12:35 PMThe "recess" in recess appointments is the Senate's recess, not the Court's recess.
Posted by: David Cohen at May 25, 2005 12:41 PMThe Senate will be in recess in July, and Bush can make a recess appointment to the S. Ct. just as he recess appointed Bill Pryor to the 11th Circuit, during what was essentially a long weekend. Ted Kennedy and some of the interest groups on the left challenged this, but the 11th Circuit upheld Bush's action, and the S. Ct. refused to hear the appeal.
Eisenhower as I recall recess appointed Warren and Brennan.
Posted by: Dan at May 25, 2005 1:19 PMRecess appointments to the Court should be political hacks who are responsive to the White House. Why create a paper trail for a valuable judge? Why not discredit the idea of a court composed of recess appointees, which is where we're headed if filibusters become routine?
Posted by: pj at May 25, 2005 4:00 PMBecause you can get them confirmed in '07.
Posted by: oj at May 25, 2005 4:06 PMBush still has the ultimate weapon: a recess appointment for Mark Levin. Can you imagine Schumer's reaction to that?!
And his paper trail would be quite easy to follow.
Posted by: jim hamlen at May 25, 2005 5:03 PM