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Wednesday, November 29, 2023

Judicial Compromise Leaves Bitterness

The signatures of 14 Senate centrists, seven from each party, spilled across the last page of a hard-won compromise on President Bush's judicial nominees. But whatever elation the negotiators felt, the Senate's Democratic leader did not share it.

The signatures of 14 Senate centrists, seven from each party, spilled across the last page of a hard-won compromise on President Bush’s judicial nominees. But whatever elation the negotiators felt, the Senate’s Democratic leader did not share it.

In the privacy of his Capitol office last Monday night, Sen. Harry Reid, D-Nev., asked for commitments from six Democrats fresh from the talks. Would they pledge to support filibusters against Brett Kavanaugh and William Haynes, two nominees not specifically covered by the pact with Republicans?

Some of the Democrats agreed. At least one, Sen. Ben Nelson of Nebraska, declined.

Details of Reid’s attempt to kill the two nominations within minutes of the agreement, as well as other events during this tumultuous time, were obtained by The Associated Press in interviews with senators and aides in both parties. They spoke on condition of anonymity, citing confidentiality pledges.

The conversation in Reid’s office was among the final acts of a drama that played out unpredictably over several weeks. It culminated in a deal that cleared the way for votes on some nominees long blocked by Democrats, left other nominees in limbo and averted a bruising fight over the Senate’s filibuster rules.

“I think the place would have shut down or been severely disrupted had there been that bitter vote,” said Sen. Susan Collins, R-Maine.

Instead, Texas Supreme Court Justice Priscilla Owen was confirmed last week to the 5th U.S. Circuit Court of Appeals after a four-year wait. Other nominees advanced.

Yet soon after, partisanship flared anew, this time over the nomination of John R. Bolton to be U.S. ambassador to the United Nations.

Still, senators involved in last week’s compromise on judicial nominees expressed hope that the “mutual trust” cited in their accord could withstand even the challenge of a nomination battle over a Supreme Court vacancy.

“If we can work through that, we can work through anything,” said Sen. Mark Pryor, D-Ark. The first-term Democrat played a prominent role in the talks.

Added Nelson: “It’s not a contract that’s enforceable. It’s a mutual agreement that is self-enforcing.”

The crucial negotiating sessions took place around a coffee table in the memento-filled inner sanctum of Sen. John McCain’s office. A small glass bust of Theodore Roosevelt, one of the Arizona Republican’s heroes, gazed down from the mantle.

Two weeks earlier, McCain had returned from a memorial ceremony for the late Democratic Rep. Morris Udall of Arizona, recalling a seemingly bygone era of trust among lawmakers. At a weekly lunch of GOP senators, he said a deal with Reid on judges was possible and that Republicans should seek it.

Not a single Republican rose to second the thought. In reply, Senate Majority Leader Bill Frist _ a potential presidential candidate in 2008, like McCain _ asked which of Bush’s conservative candidates should be jettisoned as part of a deal.

Frist’s own negotiations with Reid had foundered on that point. The Tennessee Republican insisted on a “simple principle,” he said repeatedly: a yes or no vote for each nominee.

Said Reid: “They want all or nothing, and I can’t do that.”

Among those senators who got involved, Nelson had been at it the longest. A Democrat seeking re-election in a Republican state, he and Sen. Trent Lott, R-Miss., had explored a compromise this year without success.

Now Senate leaders were at an impasse. A close vote loomed on the showdown. Nelson, McCain and a politically eclectic group of senators took over. Nelson provided the first in a series of drafts that eventually numbered 30 or 40.

Discussions had a free-flowing, almost chaotic nature as senators discussed the meaning of senatorial trust, the definition of “extraordinary” and which nominees would not make the cut.

The involvement of two senior lawmakers, Sens. Robert C. Byrd, D-W. Va., and John Warner, R-Va., lent prestige. Byrd helped bring Sen. Daniel Inouye, D-Hawaii, another veteran lawmaker, into the group.

Ironically, though, progress slowed 10 days ago when Byrd and Warner proposed using the document to encourage Bush to consult more widely in the future with the Senate on judicial nominees.

Sen. Mike DeWine, R-Ohio, stepped in last weekend, helping narrow the language so it did not impinge on presidential prerogatives.

Reid had offered to permit a vote on some of Bush’s stalled nominees for the appeals courts, including one nominee from among those Democrats opposed most strongly. Negotiators added a second to the list, then a third. That left two nominees without guarantees.

Meantime, a compromise over future nominees was elusive.

Democrats wanted the right to filibuster, while insisting Republicans abandon their threats to ban the practice.

Republicans insisted on some sort of linkage _ limiting the potential for filibusters, while reserving the right to respond forcefully if Democrats broke their word.

Draft proposals, bearing language written by Reid’s staff, envisioned future filibusters only “under extraordinary circumstances.” Sen. Chuck Schumer, D-N.Y., a member of the leadership, weighed in from a distance. Republicans agreed each senator could exercise “his or her own discretion and judgment” in deciding whether to filibuster.

Republicans objected forcefully at other points.

At a private lunch among senators, Sen. Mitch McConnell, R-Ky., and other GOP leaders equated a pending draft with unilateral disarmament. They said it would allow Democrats to filibuster without fear of retaliation.

Back around the coffee table, McCain, DeWine, Sen. Lindsey Graham, R-S.C. and others insisted that Democrats yield ground.

Finally, as the negotiators returned to the Capitol last Monday, the day before the scheduled vote, the centrists were optimistic they had a deal.

It called for allowing final votes on Owen, California Supreme Court Janice Rogers Brown for the U.S. Court of Appeals for the District of Columbia Circuit and former Alabama Attorney General William Pryor for the 11th U.S. Circuit Court of Appeals.

Also, final votes would go ahead on three nominees for the 6th U.S. Circuit Court of Appeals: Michigan Court of Appeals Judge Richard Griffin; U.S. District Court Judge David McKeague; and Wayne County, Mich., Circuit Judge Susan Bieke Neilson.

The deal specified no commitment on the Interior Department’s former top lawyer, William Myers III, for the 9th U.S. Circuit Court of Appeals, or Michigan Court of Appeals Judge Henry Saad for the 6th Circuit.

That morning, Reid met in his office with Nelson and Mark Pryor. Reid wanted changes in the draft to specify that there was no guaranteed final vote for two other nominees:

_Kavanaugh. As associate independent counsel under Kenneth Starr, he had leading roles investigating the Whitewater case involving President Clinton and the 1998 Clinton impeachment case. Later, in the Bush White House, Kavanaugh was one of the president’s lawyers working on getting the president’s judicial nominations through the Senate. Kavanaugh was nominated for the U.S. Court of Appeals for the District of Columbia Circuit. Democrats argued that he was too conservative for the bench.

_Haynes. As the Pentagon’s top lawyer, he wrote a controversial memo about interrogation of prisoners at the U.S. Navy base at Guantanamo Bay, Cuba. He was nominated for the 4th U.S. Circuit Court of Appeals.

Senate Republicans pushed back when the centrists got together last Monday evening for what proved to be their final meeting. GOP lawmakers noted that the Senate Judiciary Committee had not acted on either Kavanaugh or Haynes.

At Collins’ suggestion, their names, as well as those of McKeague, Griffin and Neilson, were dropped from the document.

Final tinkering remained.

The draft said Democrats could filibuster only in “extraordinary circumstances” and that Republicans would oppose any rules changes “in light/assuming the spirit and commitments made in this agreement.”

“In light” of, a construction credited to Graham, won out.

Collins successfully sought insertion of one additional word, obliging Democrats to “continuing” commitments.

Moments after the talks ended, six of the Democratic negotiators _ Nelson, Pryor, Byrd, and Sens. Ken Salazar of Colorado, Mary Landrieu of Louisiana and Joseph Lieberman of Connecticut _ walked into Reid’s office.

Schumer objected to the deletion of Kavanaugh’s name. Recognizing that the talks were over, Reid asked Democrats to support filibusters against both Kavanaugh and Haynes.

Nelson declined. Several participants in the meeting said the others agreed, although Landrieu said Friday through a spokesman that she had not. Reid’s spokesman declined comment.

The negotiators left for a celebratory news conference with their GOP counterparts. Reid praised the agreement in public.

Not so Frist.

After meeting with the GOP bargainers, he walked to the Senate floor to say pointedly he was “not a party” to the pact.

The next day, speaking to Republican colleagues, he was more blunt.

The seven GOP negotiators, one listener recalled Frist saying, “signed our rights away.”

© 2005 The Associated Press

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