By most accounts, the Republicans had the votes to change Senate rules and end the Democratic filibusters of President George W. Bush's judicial nominees. But with time running out for deal-making, 12 senators, six from each party, met in the office of Sen. John McCain (R-Ariz.) shortly after 6 p.m. on May 23. Their mission: End the Senate impasse over judicial nominees while avoiding the GOP's "nuclear option" of changing Senate rules to end the logjam over judicial appointments.
At 7:40 p.m. Sen. McCain took the microphone and announced a deal signed by the diligent-or dirty-dozen, depending on political perspective, plus two add-ons. Three of the most hotly contested potential judges nominated by President Bush would be given an up-or-down confirmation vote. The Democratic deal-signers agreed to limit their use of the filibuster to "extraordinary circumstances." The seven Republicans promised not to change Senate rules as long as Democrats operated in good faith. There were smiles. Glad-handing. Congratulation and self-congratulation. Sen. Robert Byrd (D-W.Va.) even went so far as to say, "We have kept it. We have kept the Republic."
The basics were easy to understand. Three of President Bush's nominees-Janice Rogers Brown (District of Columbia Circuit), Priscilla Owen (5th Circuit) and William Pryor (11th Circuit)-got an OK to be voted on. Ms. Owen was promptly approved by the Senate, 56-43, and pundits expect all three to be confirmed. Democrats retain the right to filibuster, but that may spoil the deal.
Then the spin began on the left. Minority Leader Harry Reid (D-Nev.) smiled and thanked the compromisers for their courage. Other Democrats called the deal a victory for the filibuster and a victory for the Senate. Many Republicans criticized the deal, which Sen. Orrin Hatch (R-Utah) on talk radio called a "truce but not a treaty." Other Republican senators complained that Sen. McCain and others had, in effect, given up a victory that would have given President Bush the maximum opportunity to nominate successfully a strict constructionist Supreme Court justice when a vacancy on the high bench occurs.
Many Christian and conservative bloggers and leaders saw the move as a betrayal. "Those of us who have been working and praying for a change in the courts have been handed a major disappointment by seven Republican senators," wrote Al Mohler, president of Southern Baptist Theological Seminary in Louisville, Ky.
Liberal interest groups who fought hard against the nominations of Mr. Pryor, Ms. Owen, and Mrs. Rogers Brown also expressed dismay. Alliance for Justice, a left-wing lobbying group headed by activist Nan Aron, announced, "While Alliance for Justice has no interest in seeing the Senate break down, we are very disappointed with the decision to move these extremist nominees one step closer to confirmation."
The deal meant a fast-track go-ahead for U.S. District Judge David McKeague, Michigan Court of Appeals Judge Richard Griffin, and Wayne County Circuit Judge Susan Bieke-Neilson-all Bush nominees whose confirmations have festered for years in committee. The deal allows filibusters on two Bush circuit court nominees, William Myers and Henry Saad. Capitol Hill insiders believe Mr. Saad's blockage is due in part to personal grudges. During the 1990s, Michigan Republican Sen. Spencer Abraham blocked a Clinton nominee to the 6th Circuit Court, Helene White, married to Sen. Carl Levin's (D-Mich.) first cousin.
Mr. Levin, a five-term senator and ranking Democrat on the Armed Services Committee, vigorously opposed Michigan nominees Griffin and McKeague, as well as Mr. Saad. Mr. Saad hurt himself when an e-mail he wrote criticizing Mr. Levin and Michigan's other Democratic Senator, Debbie Stabenow, was made public.
The agreement contains a subjective-and likely debatable-view of the word extraordinary: "Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."
One thing all parties agree to: The fight over appellate court nominations is only a warm-up for an impending Supreme Court nomination battle. Many in Washington expect Chief Justice William Rehnquist to retire sometime this year. Interest groups on both sides will pressure members of the pact to take a hard-line approach. "Everything that we've worked for in the past few decades comes down to this," said Family Research Council's Tony Perkins. "Will we get the judges that the president campaigned on?"
Tom Jipping, an aide to Sen. Orrin Hatch (R-Utah) and former Vice President for Legal Policy at the conservative Free Congress Foundation, said deal-makers face a dilemma if Mr. Rehnquist is first off the court. Replacing the conservative chief justice with another strict constructionist won't actually change the makeup of the court. Both sides may decide to keep their powder dry. "It would make no sense to have World War III when the balance of the court isn't going to change," Mr. Jipping said.
Mr. Perkins, however, believes the battle will be joined. "The extreme left gets it better than the right because they understand this is their only hope to impose their social agenda on America," he said. "Abortion wasn't given to us by the legislative branch. Prayer wasn't taken out of schools by Congress."
If Mr. Bush follows his commitments, some Democrats will call his eventual Supreme Court nominee "outside the mainstream," and Senate-watchers will find out if that is an extraordinary circumstance.
If that happens, Sen. Lindsey Graham (R-S.C.) laid groundwork for pulling out of the agreement: "If there comes a point in time in the future where one of the seven Democrats believes that the person before them is so unacceptable that they have to get back in the filibustering business, here's what it means for the Republicans-because I helped write the language. It means we'll talk, we'll listen, and we'll discuss why they feel that way. But it means that I'm back in the ballgame. If one of the seven decides to filibuster and I decide it's not an extraordinary circumstance . . . then I retain my rights under this agreement to change the rules."
Mr. Graham's doctrine leaves Democrats in a quandary. Any employment of the filibuster risks upsetting Republican deal-makers and dooming the judicial filibuster to extinction. To preserve the filibuster, Democrats have to, in effect, stop using it.