ConfirmThem

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

Today on ABC’s This Week program, Senator Specter again made his case for William Myers, arguing that Myers should be confirmed. Specter has previously said that, “William Myers would give some balance to the Ninth Circuit, and that is going to be one of the arguments I am going to make."

Like Specter, Senator George Allen is also urging that the Myers nomination be voted on soon: “Once we get through Janice Rogers Brown and Judge Pryor, I think the next one that should test all this should be William Myers for the 9th Circuit."

Myers has already been reported favorably out of committee. But, Senator Reid is now arguing that Myers is not protected by the “extraordinary circumstances" hurdle in the MOU, and so Reid is threatening a filibuster:

Aides to Senate Minority Leader Harry Reid told FOX News that Democrats will filibuster the nomination of Saad and William Myers to the 9th Circuit Court. Democrats say both nominees are exempt from the "exceptional circumstances" clause in the bipartisan agreement.

Senator Reid is trying to have it both ways by also saying that, “The nuclear option is gone for our lifetime." In reality, if the “extraordinary circumstances" provision is inapplicable to Myers, then so too the non-nuclear pledge must be inapplicable to Myers; after all, both of those provisions are in Part II of the MOU, instead of in Part I where Myers is named.

Senator DeWine clearly stated at the press conference announcing "The Deal," as follows:

Senators have agreed that they will not filibuster except in extraordinary circumstances.

Thus, the New York Times correctly reported that the “extraordinary circumstances" language does indeed apply to Myers:

Dr. Frist said he would bring the Myers nomination to the floor at the “appropriate time," a move that could provide a more strenuous test of the agreement, which bars use of filibusters against judicial nominees except in “extraordinary" cases.

Surely, the mere fact that Myers is named in a different part of the MOU from the “extraordinary circumstances" language should not mean that he is not protected by that language. Otherwise, Henry Saad wouldn’t be protected either, which would contradict what Senator Ben Nelson has explained:

If he [Judge Saad] were to come out [of committee] then he would, in my opinion, get an up-or-down vote, or some of my colleagues may decide that that’s exceptional circumstances, so that’s sort of where we are. I voted against cloture on Judge Saad, which is the only time I voted against cloture for the filibuster, but the reason I did it was I couldn’t go to an up-or-down vote because I couldn’t get the file; it was a file that had some information that I wanted to get.

Incidentally, Senator Reid's notion that Myers is not protected by the "extraordinary circumstances" language suggests that Owen, Brown, and Pryor weren't covered by that language either, and so up-or-down votes for Owen, Brown, and Pryor would set no precedent regarding the meaning of the "extraordinary circumstances" language. This is an additional reason to be very wary of conceding Reid's point about Myers being exempt from the "extraordinary circumstances" language.

Even if Reid's point is conceded, and Myers is determined not to be protected by the "extraordinary circumstances" language in the MOU, it would still be wise to insist upon an up-or-down vote for Myers. This is because the MOU will expire less than two years from now, at which time all nominations would become subject to the Myers precedent.

For more info about Myers, see his Dept. of Justice profile. Also, his entire February 5, 2004 hearing can be viewed online (using RealPlayer). Moreover, the Committee for Justice has two useful pdf documents about Myers, here and here. The written hearing report for Myers is linked over at the right-hand-side of the confirmthem home page. Former Senator Alan Simpson's glowing endorsement of Myers is here (referencing the fact that Myers has been endorsed by Cecil Andrus who was Interior Secretary in the Carter Administration).

I must say that, personally, I am somewhat less enthused about the Myers nomination as compared to some of Bush's other nominations (I wish Myers were more pro-environment and anti-boundless-privacy-rights). Nevertheless, all nominees who make it to the Senate floor should be voted upon. That was the general tradition for 214 years, and it would be very unfortunate if that tradition is now abandoned, in favor of a minority veto.

Regarding Judge Saad, why not have a cloture vote, just to find out whether or not he can garner more than 49 votes? Without knowing that, it's difficult to know how to proceed with the Saad nomination. On the other hand, it's pretty clear that Myers can get more than 49 votes.

Reid is not just planning filibusters against Saad and Myers. He's also targeting Kavanaugh and Haynes, according to this AP report:

In the privacy of his Capitol office last Monday night [May 23], Sen. Harry Reid, D-Nev., asked for commitments from six Democrats fresh from the talks. Would they pledge to support filibusters against Brett Kavanaugh and William Haynes, two nominees not specifically covered by the pact with Republicans? Some of the Democrats agreed. At least one, Sen. Ben Nelson of Nebraska, declined.

So, it looks like we're going to have multiple judicial filibusters pretty soon --- which may or may not be what the Republican signers of the MOU wanted.