Harry Reid's Handshake
June 3, 2008 ...Senate Democrats are giving fresh meaning to the phrase "trust but verify." Leading up to Memorial Day, Majority Leader Harry Reid walked away from his spring pledge to Senate Republicans to confirm three of President Bush's judicial nominees by the holiday weekend. We'll soon see if Republicans will take this lying down.
In the deal brokered in April, Mr. Reid agreed to confirm three nominees in exchange for Republicans shelving plans to shut down the Senate over the issue. But as the deadline approached, Mr. Reid insisted he had always said he "couldn't guarantee" the confirmations. In the end he confirmed only Steven Agee for the Fourth Circuit Court of Appeals, kicking the other 10 pending appellate nominees into the summer.
So far this year the Senate has confirmed a grand total of two circuit court judges. That's unprecedented in its stinginess, even for a Senate controlled by the party that isn't also in the White House. In Bill Clinton's last Congress, a Republican Senate confirmed 15 appellate nominees, and Democrats confirmed 17 in Ronald Reagan's last two years.
In the latest excuse for doing nothing, Senate Judiciary Chairman Pat Leahy is invoking the "Thurmond rule." Under a precedent ostensibly created by Republican Strom Thurmond in 1980, confirmations of new judges cease after July in a presidential election year. But the Thurmond rule is a Democratic urban myth. Mr. Thurmond made the statement in question at a September 1980 hearing when his committee voted out 10 Jimmy Carter nominees a mere six weeks before the election.
That same year, a Senate staffer named Stephen Breyer was nominated and confirmed to the First Circuit after Ronald Reagan was elected, in the very final days of the Carter Administration. Mr. Breyer would become a Supreme Court Justice during the Clinton presidency thanks to that Republican bow to Ted Kennedy, for whom Mr. Breyer worked. In 1984, a GOP Senate confirmed six circuit court nominees in August and another five in October. Ditto 1988, when a Democratic Senate confirmed a pair of Reagan nominees as late as October. Compared to Mr. Leahy, ol' Strom was the picture of bipartisanship.
Mr. Reid's strategy is clearly to leave as many vacancies as possible for President Obama – never mind that four circuits are currently operating with one or more seats that count as judicial "emergencies" because they have been vacant for so long. The Fourth Circuit is down four judges, but Mr. Leahy is refusing to move on four well-qualified nominees – Glen Conrad, Rod Rosenstein, Steve Matthews and Bob Conrad. Peter Keisler, nominated for the D.C. Circuit, has been waiting for a hearing since 2006. Democrats think he's too smart and too qualified and thus future Supreme Court material. So don't expect Mr. Reid to return the Stephen Breyer favor.
Instead, he wants to say he fulfilled his pledge to the GOP by moving on a pair of Sixth Circuit nominees, Ray Kethledge and Helene White. Democrats signed off on those two as part of a deal with Michigan Democrat Carl Levin, who is Ms. White's cousin-in-law. Republicans thought their deal with Mr. Reid was for two nominees in addition to the Michigan pair – but with the Majority Leader, you have to read the fine print of any handshake.
The question is how Republicans are going to react to this rude treatment. With 49 Senators, they can make life very difficult for the majority. Arlen Specter, the ranking Republican on Judiciary, said last week that the GOP caucus was "of a mind to get tough." But Democrats have heard that one before.
Minority Leader Mitch McConnell is up for re-election this year and wants to spend as little time as possible in Washington. But there are few better political fights for Republicans than over judicial nominations. A new Rasmussen study shows that the type of Supreme Court Justices a presidential candidate would appoint outranks even the war as a priority among GOP voters. Democrats are hoping to gain as many as nine Senate seats this fall, which means Republicans had better find a way to show voters that they matter – and soon.
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