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Recent days have witnessed a feeding frenzy over detonation of the “nuclear option.” That procedure would enable Republican senators to end by majority vote Democrats’ filibustering of President George W. Bush’s 12 judicial nominees whom they strongly oppose. Republican and Democratic senators have ratcheted up the stakes and the rhetoric. The media have fanned the flames in search of ever more provocative stories about when, where and how the nuclear devastation will be wrought, meticulously calibrating the 50 necessary votes. Senate Judiciary Committee 10-8 party-line votes for 5th U.S. Circuit Court of Appeals nominee Priscilla Owen and for D.C. Circuit nominee Janice Rogers Brown have now set the stage for deploying the nuclear option. The majority leader, Senator Bill Frist, R-Tenn., apparently believes that his presidential ambitions ride on successfully invoking the nuclear option. Senator George Allen, R-Va., who has his own presidential ambitions, is urging that Frist expeditiously apply the nuclear option. Frist recently ignited the explosive mix of religion, politics and judicial selection when he participated in “Justice Sunday,” a telecast to Christian conservatives encouraging them to “stop this unprecedented filibuster of people of faith.” Vice President Dick Cheney has powerfully reaffirmed his support for the nuclear option. The minority leader, Senator Harry Reid, D-Nev., and other Democrats have vowed that they will bring Senate business to a crawl, and perhaps halt it altogether, should Republicans use the nuclear option. Two weeks ago, Reid offered a compromise. Democrats would allow confirmation votes on a few Michigan 6th Circuit nominees but Republicans must withdraw a fourth controversial nominee. Democrats would also allow a vote on one of four other controversial nominees, but the GOP must withdraw the remaining three. The GOP flatly rejected this proposal. On April 28, Frist suggested, instead, that all nominees receive votes, with floor debate of 100 hours on controversial ones. Democrats peremptorily rejected this approach. On April 29, Frist said he was “running out of options” and the nuclear alternative’s use was “almost inevitable.” These machinations and the media’s reporting of them have obscured a critical development that shows how to avoid the nuclear option. The Senate Judiciary Committee recently voted, 14-4, to approve Thomas Griffith’s D.C. Circuit nomination. Four Democrats, including Dianne Feinstein, D-Calif., and Charles Schumer, D-N.Y., voted with 10 Republicans to send his name to the Senate floor, which ensures his confirmation. This vote was crucial because it illustrates one valuable means of sidestepping the nuclear option-reaching some consensus on the 12 controversial nominees. Four Democrats supported Griffith, even though serious concerns were raised about the nominee, who allowed his bar license to lapse while he continued practicing. The D.C. Circuit is the nation’s second most important court. It rules on appeals from agency decisions that affect millions of people and have substantial health, safety, welfare and economic implications. The court also resolves high-profile cases involving separation of powers and allegations that governmental officials behaved illegally. Griffith’s confirmation will mean that the D.C. Circuit includes six judges appointed by Republicans and four by Democrats. Opportunity for compromise Democratic senators’ vote for Griffith signals their willingness to be reasonable and to compromise, thereby avoiding the nuclear option. Democrats should now ask themselves the difficult question whether any of the remaining eight nominees, in addition to the three 6th Circuit Michigan nominees, whom they have opposed, warrants treatment analogous to Griffith’s. Democrats might even permit votes on 9th Circuit nominee William Myers because Democratic appointees significantly outnumber Republican appointees on that court, which covers the West. Democrats could similarly allow votes on Judge Terrence Boyle for the 4th Circuit and Owen for the 5th Circuit on the theory that Republican appointees already enjoy substantial majorities on those courts. For their part, Republicans must evince greater flexibility about certain of the eight remaining nominees. Illustrative would be nominating one 6th Circuit nominee to a district court vacancy and replacing that person with one of the two nominees President Bill Clinton submitted on whom the GOP Senate majority never voted. A second example would be nominating attorneys whom Democrats deem more palatable to one of the four 9th Circuit vacancies, or nominating California Supreme Court Justice and D.C. Circuit nominee Brown to the 9th Circuit, for which she is arguably more qualified. Another would be withdrawing Department of Defense General Counsel and 4th Circuit nominee William Haynes II, whose role in developing “war on terrorism” policy has made him extremely controversial. If Republicans and Democrats exercise these and other readily available options, they can avoid detonation of the nuclear alternative, which promises to continue diverting the Senate from its vital substantive business and even threatens to convert the world’s greatest deliberative body into the House of Representatives. Risking these and numerous other foreseeable and unpredictable deleterious consequences for the sake of a few appellate nominees hardly seems worth the candle. Democrats recently extended the first olive branch by voting Griffith out of committee. If Republicans and Democrats work cooperatively for the good of the executive, the Senate and the judiciary, they can step back from the devastating nuclear abyss. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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