Battle Over Supreme Court Nomination Lurks in Future

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The current controversy in the Senate over judicial nominees is only a precursor to the battle that will take place when there is a vacancy on the Supreme Court, according to Senior News Analyst Daniel Schorr.


Today, the US Senate confirmed another of President Bush's judicial nominees. The long filibuster against Janice Rogers Brown ended yesterday, part of the agreement a few weeks ago that was hailed as restoring comity in the Senate. But today, some lawmakers looked less happy about that deal. Members of the Congressional Black Caucus marched into the Senate to highlight their opposition to Brown, and news analyst Daniel Schorr says there's likely more rancor ahead.


It looked like a miracle of statesmanship when the Senate's gang of 14 moderates burst forth from Senator John McCain's office two weeks ago with a delicate compromise on judicial nominations. At least three of them would be immunized against death by filibuster, but the future of the filibuster as a weapon remained in limbo.

The first part of the agreement is working smoothly; the Republican majority assuring confirmation in most cases. But what happens then? Democratic Leader Harry Reid says the Senate should then move on to other business, but the Republicans are interested in winning several more confirmations of President Bush's judicial nominees. That brings us down to the ambiguous language of the fragile gang-of-14 agreement. The Democrats will employ the filibuster against judicial nominees only under extraordinary circumstances. There is no agreed definition of `extraordinary circumstances.'

If ailing Chief Justice William Rehnquist should decide to retire at the end of the Supreme Court's term this month, that would undoubtedly be termed by the Democrats an extraordinary circumstance. Indeed, it is the future of the Supreme Court that underlies this whole controversy about confirmations. But that would raise again the issue of the nuclear option. Majority Leader William Frist prefers to call it the constitutional option. That is the device for changing the rules by simple majority vote to scrap the filibuster.

Viewed in that light, the grand bipartisan compromise turns out to be not much more than kicking the filibuster can down the road a bit. Democrats at first seemed delighted with the gang-of-14 deal; Senator Frist appeared disappointed. That's changing as the Republicans begin to see advantages for their side. There is no reason to believe that the issue will go away, especially if there should be a vacancy on the Supreme Court. This is Daniel Schorr.

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