Many Bush Judicial Nominees Remain in Limbo

The Senate compromise on filibusters means that Bush nominees Owen, Brown and Pryor have been or will be confirmed as appellate court judges. But the status of the president's remaining judicial nominees is far less clear. Another showdown is possible.

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This past week, the Senate confirmed five appellate court nominees who had been filibustered by Democrats and renominated by President Bush. Three of those nominees, Priscilla Owen, Janice Rogers Brown and William Pryor, were so controversial, it took a pact among seven Republicans and seven Democrats to move them forward. But the Gang of 14's agreement, which averted a partisan showdown over judicial filibusters, did not cover two other filibustered appellate court nominees. As NPR's David Welna reports, last week's smooth sailing on nominations may not last long.

DAVID WELNA reporting:

Senate Majority Leader Bill Frist was quick to reap the benefits of the deal struck by the Gang of 14, even though that compromise did not have his consent. With five blocked judges now confirmed and one more vote being held Tuesday on another nominee who's been held up, Frist is taking a break from judicial nominations to try to move a long-stalled energy bill on the Senate floor. When asked last week when he might bring up more court nominees, Frist made no commitments.

Senator BILL FRIST (Majority Leader): As judges come through the Judiciary Committee, over time, they will be considered one by one. So in terms of specific timing, I'm not in the position yet to comment. I want to make sure the process works.

WELNA: Democrats accuse Frist of having wasted too much of the Senate's time on judicial nominations, but University of Richmond law Professor Carl Tobias says Frist has, in fact, gotten some difficult nominations through the Senate in fairly short order all because of the Gang of 14's agreement guaranteeing votes on those nominees.

Professor CARL TOBIAS (University of Richmond): I think the more difficult issue is what will happen with the ones remaining who either expressly mention in the agreement on which there was no agreement to move them forward or the others left out of the agreement and what will happen with them.

WELNA: Senate Democratic leaders say they intend to continue filibusters against two of the renominated appellate court candidates who were left out of that agreement: Henry Saad for the 6th Circuit and William Myers for the 9th Circuit. Idaho Republican Larry Craig, who's a strong backer of Myers, says the Democrats in that agreement vowed to filibuster only under what are called extraordinary circumstances.

Senator LARRY CRAIG (Republican, Idaho): If there is an organized effort on the other side again to filibuster, I think that says that maybe the agreement wasn't quite as good as the paper it was written on.

WELNA: Virginia Republican George Allen wants Majority Leader Frist to bring up Myers' nomination soon to test the Democrats who were part of the bipartisan compromise.

Senator GEORGE ALLEN (Republican, Virginia): Myers sequentially needs to come up before we get to a vacancy on the Supreme Court, because Myers not only is an outstanding individual to serve on the 9th Circuit but it'll also set the rules of engagement for the Supreme Court vacancies.

WELNA: And a vacancy on the Supreme Court could come soon. When that court session ends late this month, there's considerable speculation that Chief Justice William Rehnquist, who's suffering from throat cancer, will retire. Law Professor Tobias says there's another reason why some Republicans want to have a showdown over filibusters before there's a Supreme Court vacancy.

Prof. TOBIAS: Democrats could claim that by definition a Supreme Court vacancy presents an extraordinary circumstance. It has been--you know, we've gone longer than almost any time in American history without a vacancy, and so it's not that difficult an argument to make that any vacancy right now would be extraordinary.

WELNA: So Frist will likely be under considerable pressure from Republican colleagues to bring up the Myers nomination, which is the only one ready for a Senate vote by the end of the month, but Arkansas' Mark Pryor, who's one of the seven Democrats in the Gang of 14, insists their agreement can hold up even if there is a filibuster of Myers.

Senator MARK PRYOR (Democrat, Arkansas): We understood that there would be some controversial nominations that came down the pike, and we understood that this agreement would be challenged and shaken and that we would have to get back together and talk about these issues as they come up. So Mr. Myers' nomination and a number of other nominations may put the agreement to the test, but I think it's strong enough to sustain that.

WELNA: And the test will be whenever there's another judicial filibuster whether it's truly under extraordinary circumstances.

David Welna, NPR News, the Capitol.

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