The Washington Times

It is beginning to dawn on Democrats that the compromise in the Senate that averted the “nuclear option” over judges was not the victory they thought it was. Republicans, meanwhile, are beginning to come to terms with what it means to get not half a loaf, but I’d say three-quarters to seven-eighths, rather than the whole.

The spectacle of long-blocked appeals court nominees finally getting confirmed to the bench has opened eyes on both sides. For Democrats, it’s important to recognize just how vested party hard-liners had become on the unacceptability of the likes of Janice Rogers Brown, Priscilla Owen and William Pryor.

Judge Brown’s confirmation was blocked for two years. Judge Owen was one of George W. Bush’s first appeals court nominees in 2001. Judge Pryor, another 2003 nominee, received a recess appointment last year; had he not been confirmed, he would have had to leave the bench this year.

It is no small matter to organize opposition to a judicial nominee. Elaborate dossiers of previous opinions and writings have to be assembled, reviewed and distilled; talking points generated; senators recruited to the opposition; news conferences organized; activists mobilized. In certain respects, one has to be impressed by the effort that the Alliance for Justice, NARAL, People for the American Way, et al. have put on. (I say this not with approval, but entirely from the perspective of a connoisseur of Washington tradecraft.) So many nominees so effectively called into question and kept off the bench for so long – no small achievement.

The problem is the psychological blow that comes when one of them – or three of them! – at last makes it through. One has, after all, talked oneself into the proposition that these characters are unfit for the federal bench, grossly out of the mainstream, extremist in their views of the Constitution, etc. Yet one has failed, at the end of the day, to stop them – with who knows what dire consequences. There is a term for this state of affairs: defeat.

And that’s what’s going on as these three judges (plus two others who had been blocked in a Michigan tit-for-tat pertaining to blocked Clinton administration nominees) take their seats on the appellate bench. Moreover, the White House appears to be about ready to put forward another batch of nominees. The Senate deal, from the Republican point of view, is only good as long as all but “extraordinary” nominees are clearing the process. Of course, there are other means besides the filibuster to derail judicial nominations: delays in the Judiciary Committee, holds, etc. I wonder, though, if the deal in the Senate doesn’t also call into question methods of delay beyond the use of the filibuster.

There is also the problem of the benchmark set by the confirmation of Judges Owen, Brown and Pryor. This has three aspects, none of which is favorable to the Democratic hard-line position. First, these three have been thoroughly caricatured as extreme. Yet they have gone through. Their cases are thus not “extraordinary” for purposes of justifying indefinite delay of their consideration by the Senate as a whole – or so at least seven Democrats have said.

But this suggests that future nominees will have to be portrayed as even more “extreme” than these three in order to qualify as “extraordinary.” This, in turn, suggests that Mr. Bush has pretty much carte blanche to appoint solidly conservative judges, so long as they are qualified. Oh, of course, one or two might get bounced into limbo, perhaps for cause, perhaps at random. But most will get through.

Would anyone be so cynical as to suggest that a president might put forward a couple edgy names in the expectation that they will be deemed “extraordinary” – thus clearing the decks for all others?

The second benchmark is that Judges Owen, Brown, Pryor and any and all others that go through hereafter under the terms of the deal would seem to be very much “supremable” in the event of a high court vacancy. Once they have made it through the appellate round, it would be difficult to tag them with the “extraordinary” label. The effort to block by filibuster someone whom you had previously agreed should not be blocked by filibuster would be very risky politically, especially with the stakes as high as they are for Supreme Court nominations. Doing so might even, when push came to shove as a Supreme Court vacancy dragged on, legitimate the Republican’s use of a “surgical” nuclear option described not as doing away with the filibuster for judicial nominees in general but as ending an illegitimate filibuster of this Supreme Court nominee in particular.

The third benchmark pertains to the case of Judge Pryor: His recess appointment did not bar him from eventual confirmation. The Senate weakened its institutional hand vis-a-vis the White House by letting a recess appointment become permanent.

Democrats are better than Republicans at sending out press releases congratulating themselves on glorious victory. But this was not a press-release contest.