For almost two years, we have been covering the deplorable efforts of Senate Democrats to prevent President Bush’s judicial nominees from receiving an up- or-down vote from the Senate. See here, here, and here, for example. When the Democrats had a majority, the Judiciary Committee refused to act on many Bush court of appeals nominees. When the Republicans obtained a majority, the Democrats resorted to the unprecedented tactic of filibustering against a number of nominees. Senate Republicans were unable to break these filibusters and unwilling to try to change the rules of engagement in order to prevent them. However, President Bush put a few of his nominees on the bench temporarily by using his power to make “recess appointments.”
Last week, the Republicans cut a deal with the Democrats. President Bush agreed not to make any more recess appointments this term. Democrats agreed to allow some federal bench nominees an up or down floor vote. However, they reserved the right to filibuster nominees deemed especially unacceptable. In other words, as the Pittsburgh Tribune-Review notes, the Republicans lost.
I have suggested that the precedent the Democrats have set with respect to the judicial confirmation process, though bad for our system, is not necessarily bad for Republicans, since they can play the same game when a Democrat occupies the White House. But this assumes that the Republicans will be able to duplicate the Democrats’ current single-mindedness, and that the Democrats will be unable to surpass the Republicans’ current lack of will. Both assumptions have always been dubious, and are even more so after last week’s capitulation.


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