High court vacancy?

from the May 25, 2005 edition - http://www.csmonitor.com/2005/0525/p03s02-usju.html

By Peter Grier Staff writer of The Christian Science Monitor

WASHINGTON - The last-minute Senate deal on confirming federal judges may be a historic achievement - but its full implications are unlikely to be apparent for months to come.

That's because the next US Supreme Court confirmation battle will be a true test of the compromise's strengths and flaws, and the intentions of its signatories.

Under the deal, neither Republicans nor Democrats would lose the heaviest weapons they might employ in a Supreme Court struggle. They've just been stashed under the table, for now.

"It defuses the situation temporarily but postpones the inevitable, which will be a big and ugly battle over the Supreme Court," says Ross Baker, a professor of political science at Rutgers University in New Brunswick, N.J.

Of course, in the world of Washington politics, kicking a can down the road often counts as a major achievement.

Politics is such a fluid endeavor that the context for partisan disputes over judicial nominations could be completely different the next time it arises. The fact that a bipartisan group of 14 senators struck a key agreement outside the control of their respective party leaderships might augur some change in the way the chamber works. The tone on Capitol Hill might soften somewhat, at the very least.

Furthermore, there are aspects of the deal that both Republicans and Democrats can define as a victory for their side.

Republicans won the right to unfettered up-or-down votes on three contested US circuit-court nominees: William Pryor for the Atlanta-based 11th US Circuit, Janice Rogers Brown for the District of Columbia Circuit, and Priscilla Owen for the New Orleans-based Fifth Circuit.

All these nominations have been blocked for years by Senate Democrats. Their confirmation could change important aspects of the ideological balance on these important courts. Janice Rogers Brown, for instance, a firm believer in limited government, will go to the circuit that handles most federal agency-related appeals.

Mr. Pryor, who has called into question the continued relevance of the Voting Rights Act, would sit on a circuit with jurisdiction over much of the South, the very region where that law was long controversial.

The Democrats, for their part, can say that they did not promise up-or-down votes on two other blocked nominees, William Myers and Henry Saad. And their ability to filibuster future nominees survives - limited, perhaps, but still extant nonetheless.

The key here is in a two-word phrase: "extraordinary circumstances."

The seven Democratic senators who signed on to the bipartisan deal agreed that they would filibuster future judicial nominations only under "extraordinary circumstances."

But what does this mean, exactly? Sen. John McCain (R) of Arizona, a leading broker of the deal, indicated in a broadcast interview Tuesday that the gang of 14 who produced the deal might now become the arbiters of "extraordinary."

Would future nominees similar in ideological bent to Ms. Owen, say, now automatically pass muster? Would a Supreme Court nomination get closer scrutiny? If one or two members of the new gang of 14 object to the course of a nomination, what happens?

Given the health of Chief Justice William Rehnquist, both parties expect a Supreme Court opening soon, perhaps within weeks.

Senate majority leader Bill Frist of Tennessee has stressed that he is not a signatory to this week's agreement - and he has said that the so-called nuclear option, under which he would attempt to implement a ban on judicial filibusters, remains on the table.

Senator Frist has said he "will monitor this agreement closely."

Some Democratic partisans, for their part, have already begun warning that President Bush needs to desist from what they term confrontational behavior, or the deal could unravel.

"As the country awaits a likely vacancy on the Supreme Court, we hope that the president will take to heart the advice he has been given by these senators: 'to consult with members of the Senate ... prior to submitting a judicial nomination,' " said John Podesta, who served as White House chief of staff under President Clinton and now runs the Center for American Progress, a left-leaning think tank in Washington.

Yet the compromise deal might send something of a mixed message in this regard, notes Professor Baker. Some of the most controversial of Mr. Bush's circuit- court nominees were approved, while less controversial ones aren't promised an up-or-down vote.

"This would certainly embolden the president to appoint people who look like Pryor," says Baker.

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