ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

The deal says this, among other things:

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Obviously, Part A does not automatically commit signatories to invoke cloture if Brown, Pryor, or Owen were to be nominated to different judgeships (e.g. the Supreme Court). Likewise, Part B only refers to nominations of Myers and Saad to the 9th and 6th circuits respectively. If Myers were to be nominated for a different circuit instead (e.g. the 4th or DC Circuit), then that future nomination would very clearly benefit from the "extraordinary circumstances" hurdle described later in the agreement.

Nominating Myers for a different circuit could defuse some tension (the 9th handles way more enviro cases than other circuits). Even so, I don't think shuffling Myers to a different circuit would be necessary in order to avoid a filibuster.

As I mentioned previously, if Myers continues to be nominated for the 9th circuit, and then his nomination expires at the end of this one-year session of Congress, and then he is renominated, it may well be that he would then be able to benefit from the "extraordinary circumstances" hurdle in the agreement (see page 946 of Riddick which says that the “president submits nominees anew each session").

And, even right now, there is a strong argument to be made that the "extraordinary circumstances" hurdle immediately applies to Myers. If it doesn't, then there is no reason to suppose that the agreement is any kind of admission that the Owen, Brown, and Pryor nominations lack "extraordinary circumstances."

UPDATE: Senator Nelson has made clear that the "extraordinary circumstances" hurdle already applies to Saad, but it's still unclear about Myers.