February 22, 2005,
Although this is a period of apparent calm in the war over President Bush's judicial nominations, there are several behind-the-scenes developments that are at this moment shaping the coming confrontation.
The first and perhaps most important development is the Republican decision to give in to Democratic demands to hold hearings for some appeals-court nominees who have already had hearings and who have previously been approved by the Senate Judiciary Committee.
National Review Online has learned that the first of those hearings will be held next month on the nomination of William Pryor, President Bush's filibustered choice for a seat on the Eleventh Circuit Court of Appeals. The hearing will also consider the nomination of William Haynes, the president's pick for a place on the Fourth Circuit Court of Appeals.
Both men had hearings before the committee when they were nominated in the president's first term. Both were approved by the committee. Pryor's nomination was filibustered by Democrats, while Haynes's nomination was never brought to the Senate floor.
Pryor, the former attorney general of Alabama who, after the Democratic filibuster, was given a recess appointment to the Eleventh Circuit by President Bush, is a favorite of social conservatives. By all accounts, he made a strong showing at his hearing in June 2003 (see "The Nominee Who Won't Back Down"), where he stood behind his statement that he considers Roe v. Wade "the worst abomination in the history of constitutional law."
Haynes, currently chief counsel of the Defense Department, has come under attack for his role in shaping the Bush administration's policy for dealing with suspected terrorist detainees, and has been the target of criticism for the U.S. treatment of some prisoners at Iraq's Abu Ghraib prison. He was approved by the Judiciary Committee shortly before the Abu Ghraib scandal broke; after the scandal, the Senate GOP leadership chose not to bring Haynes' nomination to the floor rather than give Democrats a chance to replay Abu Ghraib before last November's elections.
Both men were recently renominated recently by President Bush. As such, they will have to be re-approved by the Judiciary Committee, but there is no requirement that they undergo new hearings.
The decision to hold hearings for Pryor and Haynes appears to be a concession to Democrats. Republicans, who now hold a 10-to-8-vote advantage over Democrats on the committee (it was 10-to-9 before last year's election), had hoped to approve the nominations quickly without having to reenact hearings that had already taken place.
The decision to hold new hearings set off a wave of speculation about Judiciary Committee Chairman Arlen Specter's strategy for handling Bush nominees. Was Specter allowing himself to be pushed around by the minority? Had he worked out some sort of deal in which he would grant hearings in return for Democrats dropping their objections to some of the GOP's nominees? Was there something else at work?
The answer to the first question is not entirely clear. But the answer to the second appears to be no. "There's no deal," says one Republican. "We're just waiting to see what the Democrats do."
"I think it's closer to an offer of a deal, to propose a hearing and then have the discussion after having made that offer," says another GOP source.
The Republicans say that Specter and his GOP colleagues are shaping a strategy in which they, the Republicans, will offer hearings and other procedural concessions to Democrats in an effort to determine whether Senate Minority Leader Harry Reid plans to continue his predecessor Tom Daschle's strategy of stopping Republican nominees at all costs.
"It's an opportunity if they want to back off one or two of [the filibusters]," says the second Republican source, "so they have a way of saving face."
"This is kind of an olive branch to them, saying, hey, I'll give this guy hearings," says the first Republican. "If they turn it into a circus, [Specter] can say, screw it, I'm not going to put the other guys through that."
It is not clear how Democrats will react to Specter's offer, and the strategy would, perhaps, not make much sense if it were aimed only at Democrats, who have proved that they will do virtually anything to stop some of the president's nominees. But it appears the plan is aimed as much at moderate Republicans in the Senate as it is to the opposition party.
The Republican leadership is considering ways to break the Democratic filibusters of ten of the president's nominees. There is also the possibility that there will soon be a battle, and possibly a filibuster, over a replacement for Supreme Court Chief Justice William Rehnquist.
If the Republican leadership decides to attempt to break Democratic filibusters, it will have to begin with the support of every GOP senator. Right now, Senate Majority Leader Bill Frist does not have that support.
The new strategy of allowing re-hearings for filibustered nominees is an effort to win over those GOP moderates who do not currently support an anti-filibuster strategy. By allowing hearings, the Republican leadership hopes to be seen by Republican moderates as offering full process to those Democrats who object to the nominations.
The strategy will also involve new and extended floor debate on all the president's nominees. Under one scenario now under consideration, it is likely that those nominees will be brought to the Senate floor, where debate will be unlimited (although it will alternate with regular legislative matters). Democrats will have the chance to object and object and object to nominees. Under the current scenario, Republicans will not call for cloture votes, which would require Democrats to recommit to a filibuster.
There is no expectation that Democrats will have anything new to say about nominees they have already filibustered. Rather, the point is to signal to Republican moderates that the GOP leadership has exhausted all its options in the effort to win approval for the president's nominees.
"Showing a complete exhaustion of process really helps us publicly," says one Republican.
In short, the GOP strategy appears to be to bend over backward to meet Democratic concerns. Then, if Democrats persist in their obstruction of the president's nominees, the Republican leadership can go to moderates like Maine's Olympia Snowe and Susan Collins and say, in effect, "See? We've done everything we can to meet their objections and they're still blocking us. Something really has to be done."
Pryor and Haynes will be the guinea pigs in the new Republican experiment. They were chosen carefully; both are candidates who, given the situation that exists in the Senate, will be difficult for Democrats not to filibuster. Pryor's statements on abortion alone virtually guarantee continued Democratic opposition, while Haynes seems destined to be portrayed as Mr. Abu Ghraib. If that is the case, and especially if Democratic attacks on them are strident, then Republicans feel they will be able to build the base from which to launch an attempt to break through the Democratic filibusters.
Or so they hope.