Many conservatives are unhappy with the judicial confirmation compromise reached on Monday among Senate moderates of both political parties, but I’m not one of them. In the short run, this agreement will lead to the confirmation of more conservative Bush nominees to the federal bench; and in the long run, it will preserve the ability of conservatives in some future Democrat-controlled Congress to stop the appointment of radical judicial activists by a Democrat president. As in any compromise, neither side got all that it wanted, but conservatives clearly came out ahead.
The agreement was forged by 14 senators, seven Republicans and seven Democrats — most but not all of whom can be characterized as moderates. It committed the signatories, but no other senator, to invoke cloture on three nominees — Priscilla Owen, Janice Rogers Brown and William Pryor. Not only did this effectively stop the filibuster, but it puts three well-qualified strict constructionists on appellate courts.
But it did something more: It gave lie to the canard that these nominees were in any way extremists. The Alliance for Justice, People For the American Way, MoveOn.org and other leftwing organizations spent a great deal of money trying to convince Americans otherwise. The Alliance for Justice — which advocates anything but justice when it comes to its treatment of conservative nominees — called Owen an "extreme judicial activist," accused Pryor of "lacking judicial temperament" and misleading Congress during his Senate hearings, and charged Brown with "twisting the law to advance her own political agenda."
And, of course, many Democrat senators embraced this rhetoric. Sen. Edward Kennedy called Brown "a candidate on the far fringes of legal thinking." Sen. Patrick Leahy said that Owen "is an example of a judge who is very eager to make law from the bench," this from a man who has had no problem embracing judicial decisions that legislated a right to abortion-on-demand, same-sex unions, and other parts of the "progressive" agenda.
The Senate compromise does not ensure a vote on all of President Bush’s nominees. Two pending appellate nominees, William Myers and Henry Saad, appear to be sacrificial lambs. A number of Democrats have alluded to allegations of a "very serious nature" in Saad’s FBI background investigation — a clear effort to smear Saad, who is an Arab American, without producing any actual evidence of wrongdoing. The real objection to Saad may be that his home state senators, Michigan Democrats Carl Levin and Debbie Stabenow, are simply seeking payback for Republicans successfully blocking two Michigan judicial nominees in the waning days of Bill Clinton’s presidency.
In return for dumping these two nominees, however, the Republicans won a commitment from the seven Democrat signatories that they will only exercise the filibuster against judicial nominees "under extraordinary circumstances." Although Democrats are given some wiggle room to use their own judgment to determine whether such circumstances exist, it’s hard to imagine how any of those who signed on to this compromise could argue that filibustering nearly one out of every three appellate nominees — the proportion of Bush appellate nominees who have so far been subjected to this treatment — would be justified. And if the Democrat signatories go back on their word — especially those from red states like Nebraska, Louisiana, Colorado and Arkansas — they could find themselves paying a price at the polls.
Conservatives’ biggest concern about the deal forged by just 14 senators is that it encourages the president "to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration." But consulting isn’t the same thing as "pre-clearing" a nominee — it would simply encourage the president to seek the advice of the Senate, as stipulated in the Constitution, earlier in the process. In theory, there’s nothing particularly objectionable about this practice, so long as it doesn’t give Democrats a veto on the president’s choices. And, of course, if Democrats play fair — hardly a guarantee — they would have to do the same thing once they’re back in the White House.
Compromise doesn’t usually produce clear winners and losers — but this one should be scored a big loss for leftwing interest groups and Democrat obstructionists. And that should give conservatives reason enough to cheer.