May 19, 2004,
Across Washington today, Republicans who follow the judicial confirmation wars are asking themselves this question about Tuesday's deal between the president and Senate Democrats on the issue of judicial recess appointments: Was the agreement a clear-eyed, well-reasoned decision by the White House to make the best of a bad situation, or was it a flat-out presidential surrender?
After a meeting Tuesday morning between White House Chief of Staff Andrew Card, Senate Minority Leader Tom Daschle, and Senate Majority Leader Bill Frist, the White House promised not to make any more judicial recess appointments for the duration of the president's term (the current term, that is, ending on January 20, 2005). The deal was a White House concession in the face of a Democratic blockade of more than 30 of the president's judicial nominees. Those nominations had been paralyzed since March, when Daschle, angry that Bush had stepped over Democratic filibusters to make recess appointments of appeals court nominees Charles Pickering and William Pryor, vowed to stop all nominations unless the president promised to give up his power to make recess appointments to the judiciary.
And that is what the White House did on Tuesday. In return, Daschle promised to let 25 of the affected nominees through the Senate. That number includes 20 District Court nominees and five appeals court nominees, who will receive Senate action by the end of June. All of them are non-controversial; Democrats did not agree to stop their filibusters of nominees Priscilla Owen, Carolyn Kuhl, and Janice Rogers Brown (another filibuster target, Miguel Estrada, withdrew his nomination in the face of Democratic opposition). Democrats also did not agree to forgo more filibusters in coming months; some in the GOP expect Democrats to filibuster nominees Terence Boyle, Claude Allen, Brett Kavanaugh, and possibly others if Republicans attempt to bring them before the Senate for votes.
It appears, then, that the president gave up his judicial recess-appointment power, not for any substantial concessions from Democrats on the issue of filibusters, but in return for what should have been routine Senate approval of consensus nominees. All the nominees who were previously opposed by Democrats will remain in limbo.
Republicans know the deal looks bad for the president, and so they are trying to put the best face on it. "I don't think it can be characterized as a surrender at all," says one. "It met their [White House] interests, which was to get some judges through."
"The optimistic view is that it was a fair deal, not a fantastic deal, but it was worth doing," says another GOP insider.
On the other hand, despite efforts to see things in a positive light, Republicans concede that the deal was not something that a president in a strong political position would do. "If Bush were at 70 percent in the polls, would he have cut this deal?" asks yet another Republican. "No way."
Still another GOP official went even farther. While the deal might seem unpalatable, he explained, it is actually quite attractive if one assumes the president will lose the election in November. "If we lose this presidential election, this will look like a great deal," he says, "because we got five more court of appeals judges that we could not have gotten next year."
The agreement came after weeks of frustrated negotiations between the two sides. In the end, it was Republicans who forced an end to the stalemate. They did so by threatening to bring up for a vote the president's lower-court nomination of Marcia G. Cooke, an African-American lawyer from Florida who is supported by both of her (Democratic) home-state senators. If Democrats wanted to maintain their blockade and use the 50th anniversary of Brown v. Board of Education to stall the nomination of a clearly qualified black woman, Republicans said, they were welcome to do so. As it turned out, Democrats didn't want to do that, and accepted what was, for them, an extremely attractive White House offer.
Some of those who follow the process wondered why it took so long. "If the White House was going to capitulate on the recess appointments, why wasn't that decision made 12 or 16 weeks ago?" asks one. "We haven't advanced the ball in any significant way, but we've lost a lot of time."
The secret of the White House's action might be that the president had no more nominees to recess-appoint. Other than Pickering and Pryor, it's thought that none of the filibustered nominees, who have secure places on other benches, wanted to accept a recess appointment. In addition, the White House seems not to have seriously considered proposals by some activists that the president recess-appoint distinguished, retired conservative jurists to the bench as a temporary solution to the standoff with Democrats. So the president gave in, and Daschle achieved his objective at little cost to Democrats. After the announcement, Daschle told reporters that the White House had "made the right decision."
As for the White House, itself, spokeswoman Erin Healy said, "The president believes it is important to fill judicial vacancies in a timely manner, and this agreement is an important step in meeting that objective." Senate Judiciary Committee chairman Orrin Hatch added, "It is no secret that I have been extremely concerned that it had been more than nine weeks since the last judicial confirmation. I am pleased that a more reasonable and responsible atmosphere seems to have returned to the Senate. I am optimistic that this spirit will continue and look forward to working on confirming additional judicial nominees this year."
Perhaps that will happen. But it seems likely that little progress beyond some new Democratic filibusters will take place in the Senate between now and the end of the year. Instead, the fight will shift to the campaign trail. As he did (successfully) in the 2002 midterm elections, the president will emphasize the judicial standoff in his stump speeches. "It's the big applause line wherever he goes," says the Republican. Democrats will talk about it too, telling their base supporters that they have stopped the most extreme Bush judges and will put an end to the issue altogether if a Democrat is elected to the White House.