Editor's note: In light of Monday night's extraordinary
agreement in which 14 Senators staved off Senator Frist's
threatened "nuclear" option to force an end to Senate
filibusters over judicial nominees, BushGreenwatch asked Doug
Kendall, executive director of Community Rights Counsel (CRC),
to offer a brief perspective of what the agreement means in
terms of environmental protection. CRC teamed with Earthjustice
to lead "Judging the Environment," a campaign to highlight the
environmental stakes in the battle over judicial nominations.
His commentary follows:
In the heat of a battle, a deal can look like a defeat. This is
particularly true in a battle joined over a dirty parliamentary
trick like the so-called Nuclear Option, in which Senator Bill
Frist proposed to break Senate rules in order to eliminate the
use of judicial nominations filibusters.
And any deal that may result in confirmation of judges like
Janice Rogers Brown, who will wreak havoc on environmental laws
for the rest of her life if confirmed to the DC Circuit, can be
embraced only as a compromise.
But environmentalists appear to have cemented a landmark victory
in the so-called "Gang of 14" deal, reached by a bipartisan
coalition of Senators: namely,the defeat of William Myers, a
long-time grazing and mining lobbyist nominated for the Ninth
Circuit Court of Appeals. If the Democratic filibuster on Myers
holds, as it should, this will mark the first time in history a
judicial nominee has been defeated primarily on environmental
grounds.
There are other consolations. First and foremost, the deal takes
the nuclear option off the table, stating "In light of the
spirit and continuing commitments made in this agreement, we
commit to oppose the rules changes in the 109th Congress."
While the Democrats agreed, in exchange, not to filibuster
nominees absent "extraordinary circumstances," the existence of
those circumstances is left to the "discretion and judgment" of
each signatory. Under this deal, Senate Democrats may continue
to use the filibuster as a way of discouraging or blocking
nominees that represent the nominations equivalent of a thumb in
the Democrats' eyes.
Even more important, perhaps, is a new provision that was added
at the last minute at the behest of Senators Robert Byrd and
John Warner. It is worth quoting in full:
We believe that, under Article II, Section 2, of the United
States Constitution, the word "Advice" speaks to consultation
between the Senate and the President with regard to the use of
the President's power to make nominations. We encourage the
Executive branch of government to consult with members of the
Senate, both Democratic and Republican, prior to submitting a
judicial nomination to the Senate for consideration.
As this provision illustrates, President Bush could have avoided
this war over his judicial nominations simply by taking more to
heart his responsibility to make judicial appointments with "the
advice and consent" of the U.S. Senate.
The fact that seven Republicans signed a deal with this
paragraph included is a clear rebuke to President Bush for his
unilateral and overtly-ideological judicial selections. This
paragraph gives some meaning to the phrase "extraordinary
circumstances": if the President picks a controversial Supreme
Court nominee without any consultation with Democrats, they can
plainly argue extraordinary circumstances exist.
The downsides of the Gang of 14's deal are real. They could lead
to the confirmation of three of President Bush's most disturbing
nominees from an environmental perspective -- Brown, William
Pryor, and Priscilla Owen -- and it limits future filibusters to
cases that qualify under the still ambiguous "extraordinary
circumstances" test.
But keep one fact in mind: absolute defeat was just as likely in
a nuclear option vote as absolute victory. In that light, the
Gang of 14 deal starts looking pretty good.
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