As Memorial Day recess approaches, battles in the Senate surrounding President Bush’s pending circuit court nominees are once again heating up. At issue is whether a deal hatched last month between Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) will be fulfilled on time. According to Roll Call, “frustrated Republicans accused Senate Majority Leader Harry Reid of backing out of a deal…to move three unspecified judicial nominations before the Memorial Day recess, which begins Friday.”
The truth however, is a bit more nuanced. In April, Sen. Reid agreed to push for the confirmation of three circuit court nominees before Memorial Day recess if Sen. McConnell withdrew Republican opposition to the Senate’s highway funding bill. Although the deal did not include stipulations on which nominees would be pushed through, Senate Republicans clearly held out hope that they would be able to confirm three of their pet conservatives, Peter Keisler (DC Circuit), Steve Matthews and Robert Conrad (Fourth Circuit).
Senate Republican’s hopes were dashed however, when the White House – eager to get as many nominees confirmed as possible before the president’s term expires – began consultations with home-state senators in Virginia and Michigan. As a result of these discussions, agreements were made to consider new nominees for the Sixth Circuit, Judge Helene White and the Fourth Circuit, Judge G. Steven Agee.
Encouraged by the president’s newfound willingness to compromise, Sen. Reid decided to reward the White House by moving these picks, as well as Sixth Circuit nominee Raymond Kethledge through the Senate as quickly as possible. Republicans however, angered by their exclusion from these talks and hesitant to confirm moderate justices to the bench, pushed back hard, particularly Judge White.
Judge White, who was originally nominated to the Sixth Circuit by President Clinton in 1997 faced particularly tough questioning at her May 7th hearing before the Senate Judiciary Committee, even fielding questions about her driving record – Ranking Member Arlen Specter (R-PA) seemed to imply that citations for speeding might be enough to disqualify a Judge from sitting on a federal bench. After the hearing, Judge White was sent 73 written questions to answer, while conservative favorite Raymond Kethledge received only seven.
Now it seems that the Senate will not be able to confirm the number of judges put forward in the Reid-McConnell deal. Sen. Reid argues that he and the rest of his Democratic colleagues have done everything possible to consider these nominees, even scheduling a vote for today on Judge Agee. An article in The Hill yesterday stated that Sen. Reid accused Republicans of sabotaging the progress of Judge White and making it impossible to confirm the prearranged number of judges by the end of this week. Sen. McConnell, for his part, claims that Judge White should never have been considered so quickly and claims that the Senate is perfectly capable of considering the nominations of Fourth Circuit nominees, Conrad and Matthews by week’s end.
This latest round of Republican bait-and-switch is simply more evidence that their only concern is ensuring that as many ultra-conservative ideologues make it to the bench as possible. Senate Democrats have shown a respectable willingness to work with the White House in considering so-called consensus nominees, but their Republican counterparts are not appeased. Sen. McConnell and his allies are not fighting to confirm the president’s picks, but rather to advance their radical agenda. They are not content with their past efforts to pack our courts and clearly intend to wage this battle all the way through November.
To learn more about all of President Bush’s pending nominees, check out our website here. To learn about the state of the Fourth Circuit Court of Appeals, you can read our new report here.