Wall Street Journal Has Selective Memory

In yet another editorial published today, the Wall Street Journal has criticized Senate Democrats for the confirmation pace of President Bush’s circuit court nominees. Specifically, today’s piece accuses Senate Majority Leader Harry Reid (D-NV) of backing out of a deal struck with Senate Minority Leader Mitch McConnell (R-KY) to confirm three judges before the Memorial Day recess.

Despite the fact that two of the three nominees Sen. Reid and Senate Judiciary Committee Chair Patrick Leahy (D-VT) attempted to process were held up by Republican committee members, the Journal’s editorial board inexplicably concluded that Sen. Reid was to blame for the failure to confirm three by the holiday, writing that “with the Majority Leader, you have to read the fine print of any handshake.” While we have certainly disagreed with many of the Journal’s interpretations of issues surrounding judicial selection, this latest editorial shows a complete disregard for the context and facts surrounding last month’s Senate battle.

The editorial board’s assertion that the deal struck between Sen. Carl Levin (D-MI) and the White House regarding two Sixth Circuit nominees was not intended to count towards the three agreed to by Senators Reid and McConnell is dubious. At no time during last month’s detente did Sen. Reid promise that he could confirm more than three nominees. In fact, in his floor speech announcing the deal, the Majority Leader clarified his position by saying that he would do what he could to ensure the confirmation of three judges – certainly no promise there.

The Journal also suggests that Sen. Reid misled Senate Republicans regarding which nominees he would process – although again, nowhere in his floor speech did he designate any candidates. In truth, this complaint is likely Senate Republicans licking their wounds because they were left out of White House negotiations with Sen. Levin concerning the compromise on two Sixth Circuit nominees.

Sen. McConnell may have assumed that his three favorites, Peter Keisler, Steve Matthews and Robert Conrad would be the ones confirmed, but he certainly never received any public assurances from Sen. Reid. The fact that Senators Leahy and Reid decided to reward the president’s new-found willingness to compromise by considering his Sixth Circuit nominees, as well G. Steven Agee (Fourth Circuit), who had bi-partisan support from his home state senators, does not detract from their good faith attempts to fulfill Sen. Reid's agreement with Sen. McConnell.

Finally, the editorial board attempts to paint Senate Democrats as irresponsible, stating that Sen. Reid’s “strategy is… 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.’” Interestingly enough, however, the three seats which Sen. Reid was hoping to fill – those to which Helene White, Raymond Kethledge and G. Steven Agee have been nominated – have all been classified as “judicial emergencies.” Only one of the seats that Sen. McConnell wanted to fill, that of Robert Conrad, has been given that label.

Today’s editorial is simply more fiery rhetoric from the right attempting to stir up controversy during an election year. Its writers even admitted as much when they wrote that there are “few better political fights for Republicans than over judicial nominations.” Senators Leahy and Reid have done all they can to confirm as many consensus nominees as possible. The fact that Senate Republicans are not satisfied with all of the president’s nominees cannot be blamed on Senate Democrats. It seems that it is movement conservatives like those on the editorial board of the Wall Street Journal who are trying to play games with judicial nominations, not Sen. Reid and his colleagues.