March 18, 2005,
When the Senate Judiciary Committee met in the Russell Building Thursday morning, chairman Arlen Specter didn't see the need to refight the nomination of William Myers to a place on the Ninth Circuit Court of Appeals. Myers had already had two hearings before the committee, and everyone knew that the Democrats objected to his record on environmental issues, and everyone knew that the Democrats would vote against him, and everyone knew that the real fight would be on the Senate floor. So when it came time for the committee to vote, Specter asked Democrats to dispense with the long speeches and go straight to a vote.
"Myers is well known," Specter said. "We all know there is going to be a party-line vote in committee, and we all know there is going to be a contest on the floor.... It is my hope that...we could defer the discussion of Myers until the floor."
It was a perfectly fine idea, one that might have helped the committee move a bit more expeditiously through its schedule. But it would have required a certain minimum amount of cooperation from committee Democrats. And if Specter thought he would get that, he was clearly mistaken.
"I do want to help, but I would take a moment on Mr. Myers," said ranking Democrat Patrick Leahy, who then proceeded to take many moments on Myers, restating his oft-made charge that Myers "is the most anti-environment judicial nominee that I have seen in my 31 years here."
Specter listened impatiently. When Leahy finished, Specter said, "Let me repeat my hope that we will proceed to the next item on the agenda...." He then recognized Wisconsin Democrat Russell Feingold, who Specter apparently hoped would move things along but who instead began a long monologue about Myers' "extreme views."
"Will the timekeeper please set the time at five minutes?" Specter asked in frustration. But the chairman knew that clocks mean nothing in the Senate. "Senator Feingold may observe or not observe as he chooses," Specter said somewhat haplessly.
Feingold chose to not observe. The light on the time clock glowed green, then yellow, and then red, as Feingold kept talking. "Mr. Myers remains unfit to serve on the federal bench...."
Specter stared at Feingold, his glasses in hand, with the red light shining. Finally, Feingold asked that the committee give unanimous consent for something to be entered into the record of the meeting an entirely routine request that is automatically granted. Specter apparently thought Feingold was finishing up.
"Thank you, Senator," Specter said.
"I just asked for unanimous consent that something be entered into the record," Feingold snapped, resuming his statement. "I am not convinced that Mr. Myers will put aside his personal policy views and fairly apply the laws...."
On and on it went, until finally, Feingold came to the conclusion that everyone knew he would reach: "Mr. Chairman, I will vote no."
As Feingold spoke, other senators drifted out of the hearing room, leaving the big table mostly empty. Specter began to fear that the desertions would leave the committee with too few members present to take a vote. "We are about to lose a quorum," he said.
It didn't matter. Next up was New York Democratic Sen. Charles Schumer.
"Senator Schumer made a 21-minute presentation at the [Myers] hearing," Specter said when recognizing him.
"This one will be a bit shorter, Mr. Chairman," Schumer said.
It was, a bit. Schumer launched into an extended meditation on what he said was the sad state of the judicial nominations process, a process in which his own attempts at comity and accommodation had been met by intransigence on the part of the White House and Senate Republicans. "I am sorry that we are here," Schumer said. "I am saddened that the president felt it necessary to put a thumb in the eye of bipartisanship."
As Schumer went on, the light turned from green to yellow.
"I am most saddened because in April, when we return [from Easter recess], the Myers nomination is likely to be used as the trigger to institute the nuclear option, a wrong of far greater consequence than the up-or-down vote on any nomination."
The light turned from yellow to red.
"I am particularly saddened that the president keeps recycling nominees like William Myers," Schumer continued. "In this case, it turns out that recycling is actually bad for the environment."
After each attack, Specter made a brief defense of Myers the case had been made before and would be made again on the Senate floor and tried to move on. Finally, Texas Republican Sen. John Cornyn spoke up. Maybe we should be fighting back, he said. "I always remember the political axiom that an attack not responded to is an attack believed." But instead of launching into a full-scale defense of Myers, Cornyn said it was not the time to get into the details of the case and urged that the meeting move on.
At that point, Specter got a little help from California Democratic Sen. Dianne Feinstein, who said, "I'd really like to associate myself with the comments of Senators Feingold and Schumer" but chose to not actually repeat the comments of Senators Feingold and Schumer. Instead, Feinstein went along with Specter's wishes and made just a brief anti-Myers statement.
"May we proceed now to the vote on Mr. Myers?" asked Specter.
Finally, no one objected. And, as Specter had said at the beginning of the meeting, the vote was precisely along party lines. The Myers nomination was approved, 10 to 8, and sent to the full Senate. There, it will be up to Majority Leader Bill Frist to decide when to bring it up for a vote a move that will lead to a renewed Democratic filibuster of Myers and, then, possibly, set the stage for Republicans to try what is variously known as the nuclear, or constitutional, or Byrd, option, that is, ending the judicial filibuster with a simple majority vote.
After the hearing, Specter was asked whether he is "as fearful as Sen. Schumer that the nuclear option will be triggered shortly?"
"No, no," Specter said. "I think the rhetoric is misplaced. I think that the rhetoric on both sides ought to be toned down and we ought to go ahead with the confirmation process. We've seen a lot of gridlock in the Congress, and we know that the American people are sick and tired of gridlock, and especially on judges.... What I think we ought to do is to work through the confirmation process."
It was a nice thought. But the meeting that preceded Specter's remarks offered no evidence that Democrats intended to go along. Instead, it seemed one more step toward what increasingly appears to be an inevitable confrontation.