May 27, 2004,
It's hard to jumpstart a political "war," and even harder to time one. But last week, just before their spring recess, Senate Republicans did both whether some know it yet or not.
Republicans laid out a plan of action contained in the one element of the "deal" on judicial nominations that went entirely unreported: Democrats demanded that Leader Bill Frist forgo his tactic of repeated cloture votes on filibustered judicial nominees a tactic that brought enormous media attention last year and successfully established Democrats' negative obstructionist image in polling.
Frist promised a ceasefire until September, giving Democrats a reprieve but leaving Republicans plenty of time for pre-election fireworks over judges at a time when Frist's legislative calendar will have slowed, possibly to a stop.
This week, while GOP leaders are out of town, GOP supporters are shaping the plan. Strategy will include taking to task members of their own party.
So what happened? Just two weeks ago talks between Senate leaders and the White House over the confirmation of more than 40 stalled judicial nominations had broken down and GOP senators had started talking again about the so-called "nuclear option" the use of various parliamentary tactics aimed at ending the unprecedented and unconstitutional use of the Senate filibuster rule against the president's judicial nominations.
Last week the winter ice thawed with the heat of jet engines ready to whisk senators far away. Republican leaders announced a deal with Tom Daschle (D., S.D.) that promises floor votes not confirmation for 25 mostly non-controversial nominees by July, including five circuit judges.
This kind of deal is not unusual, except perhaps in that it came so early in the year. Trent Lott (R., Miss.), when he was Republican leader, worked out a traditional sweep just before the 2002 election.
What was unusual was that in exchange for 25 non-filibustered votes, the White House promised to forego any more recess appointments for the year. To most GOP supporters, it was a surrender.
For some, it was too few nominees, leaving behind several that are being filibustered and many more bottlenecked inexplicably in the Judiciary Committee by Orrin Hatch (R., Utah). Others perceived a shift in Republican strategy, watering down the message aimed at the November election of Democratic obstruction. For others, the deal came too late and negotiations took too long.
In another apparent surrender on the heels of Memogate, Senate Republicans appeared again to take the low road the one without a view. But for the White House, the appearances were worse.
Earlier this year the president used the recess-appointment power (as Bill Clinton had before him) to end the tribulations of Charles Pickering and the Democrats' religious test against Bill Pryor. But despite their applause for Clinton's recess appointment of Judge Roger Gregory, Democrats (and the Washington Post) cried foul and, without blushing, Democrats argued that the president had violated the Constitution.
Daschle promised no more judicial confirmations unless the president surrendered the recess power. Last Tuesday, the president appeared to do just that, if only for this year.
For conservative leaders who think in terms of principle, appearing to give up a constitutional power does not look good. Senator Chuck Schumer (D., N.Y.), who would take credit for his birth if he could get quoted, quickly trumpeted the president's surrender.
Moreover, the tactic was pushed on the White House by Judiciary Committee Chairman Orrin Hatch (R., Utah) and turned out to be short-sighted, stepping on the far-sighted Republican course of highlighting Democratic obstruction. And it gave Tom Daschle a stick actually a magic wand that seemed to make the Democratic filibusters invisible to liberal editorialists.
Yet despite Democrats' crowing, the deal is not without GOP winners. Among them is the president. He had no intention of recess appointing any more nominees, and no more nominees would take the possibly short-lived honor.
The big winner was Leader Bill Frist. Frist's timely threat to force Democrats to filibuster all of the stalled nominees with a series of floor votes through the summer, beginning with Marcia Cooke of Florida (an African American woman and a Democrat), forced Daschle's hand.
Democrats did not want to expand their filibuster policy involuntarily and use the filibuster for the first time in history against a district-court nominee. Those of us who know Cooke as the first woman and first African American to lead the Georgetown University Alumni Association knew she was picture perfect. Daschle scrambled back to the negotiating table.
If there was any Republican loser it was Orrin Hatch. Even as the deal was being announced, the Chairman of the Judiciary Committee was criticizing Frist and telling reporters that he doubted there would be a deal.
In fact, Hatch has so alienated both the White House, by pushing for the nomination of protégés at the expense of other nominees, and the Senate Republican leadership, for his failure to cooperate, that he was left out of negotiations altogether. Hatch even imperiled Frist's strategy with Cooke. He was too busy, said his staff, and the leader had to delay bringing her up for a vote.
So what then of the GOP's "September plan"? If the Daschle deal cleared the decks, how can Republicans make the case of Democratic obstruction to the American people before the November election? Well, the deal did not settle the filibustered nominations of Priscilla Owen, Carolyn Kuhl, and Janice Rogers Brown, or the still filibustered permanent confirmations of Pryor and Pickering, both of whom are immensely popular in the new South. And the deal did not cover the nominees Orrin Hatch has stalled in committee, including as many circuit-court nominees as are now stalled by Tom Daschle.
After Hatch's conduct in Memogate and other betrayals, Washington conservatives began reaching out to Utah allies to consider a Toomey-like challenge to Hatch in 2006. Hatch sails through general elections but has been rocked by past Republican challenges. Three weeks ago, Utah Republicans eliminated a sitting GOP governor from the primary line up, and required a primary for an established GOP House member.
With a summer cease-fire with Democrats, GOP supporters have a clear target. They fear that Hatch, who is viewed as self-serving and myopic, will continue to find excuses to stall nominees from getting to the floor where Frist can take over.
Conservative leaders fear that Hatch has made promises to Democratic friends and worse, that they have made promises to him over the circuit-court nomination of Utah native Tom Griffith. This may explain his surrender in Memogate and his continued obstruction of seven circuit nominees.
GOP grassroots will now get back into action, but the heat they feel in the Senate during the summer months may come from fellow Republicans. Last week's "deal" was a start-up, not a wrap-up.
Manuel A. Miranda was counsel to Senate Majority Leader Bill Frist and senior counsel to Judiciary Committee Chairman Orrin Hatch.