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VOL. 7, NO. 7June 13, 2005

The "Deal" on Judicial Nominations Filibusters: An Update 

By Virginia C. Armstrong, Ph.D.*, National Chairman

"Today's vote marks a triumph of principle over politics and results over rhetoric." So said Senate Majority Leader Bill Frist after the U. S. Senate confirmed Priscilla Owen to a seat on the Fifth Circuit Court of Appeals. But neither Constitutionalists, who hold a high view of the Constitution, nor many of their Reconstructionist (liberal/activist) opponents agree with Frist. The latter feel [justifiably] that they have been betrayed by the "Filibuster Fourteen" Senators whose unconstitutional and unprecedented "agreement" preceded this Owen vote.

The "Deal" made in late May by seven Dems and seven RINOs ("Republicans in Name Only") faces far tougher challenges now that several Bush judicial nominees have been confirmed—and the war over a Supreme Court vacancy looms ahead. It is important to remember the details of this "Deal" since votes on several nominations have been taken since late May. The "Filibuster Fourteen" includes Democrats Byrd (WV), Inouye (HI), Landrieu (LA), Lieberman (CT), Ben Nelson (NE), Mark Pryor (AR), and Ken Salazar (CO). The GOP contingent includes Graham (SC), McCain (AZ), Warner (VA), Snowe (ME), Collins (ME), DeWine (OH), and Chafee (RI).

The "Deal" specifically covered nominees Owen, Brown, and Pryor and specifically excluded nominees Myers and Saad from its provisions. The status of other nominees was not clear. The participants agreed to vote for cloture on the Owen, Brown, and Pryor nominations. They also agreed not to support filibusters of other nominees except under "extraordinary circumstances." And what does this mean? "Each signatory must use his or her own discretion and judgment in determining when such [extraordinary] circumstances exist."

The problems of just this one statement render the "Deal" unacceptable. But other objections to the "Deal" can be—and have been—raised. How has the Senate voted on judicial nominations in the wake of this power grab by the Filibuster Fourteen?

  • Priscilla Owen to the Fifth Circuit: Cloture vote = 81-18-1, with all the GOP supporting cloture. Six of the Dems in the Filibuster Fourteen supported cloture, and Inouye did not vote. Confirmation vote = 55-43-2, with 53 Reps plus Byrd and Landrieu voting "Yea"; Stevens (R-AK) and Inouye did not vote.

  • Janice Rogers Brown to the D.C. Circuit: Cloture vote = 65-32-3, including 55 Reps and 10 Dems. The latter included all seven Dems in the Filibuster Fourteen. Confirmation vote = 56-43-1, with supporters including all Reps and Dem Nelson of Nebraska.

  • William Pryor to the Eleventh Circuit: Cloture vote = 67-32-1, including all the GOP plus all the Dems in the Filibuster Fourteen. Confirmation vote = 53-45-2. Of the Filibuster Fourteen, Dems Nelson (NE) and Salazar voted "Yea," while RINOs Snowe, Collins, and Chafee voted "Nay."

  • Richard Griffin to the Sixth Circuit: Confirmation by 95-0.

  • David McKeague to the Sixth Circuit: Confirmation by 96-0.

At least two points stand out in these votes: (1) The Filibuster Fourteen kept their agreement in supporting cloture, but (2) while Dems and RINOs may vote for cloture, they apparently feel disinclined to vote for confirmation. We thus arrive at the point where we were before the "Deal" except that we have more Bush judges appointed, including the stellar choices of Brown and Owen. As I recently commented to reporters in interviews with Focus on the Family and National Public Radio, this battle isn't really about people, but about principles. Court Watch will continue to inform and alert you as the war escalates. Stay tuned!

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