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With the possible exception of the 14 senators who signed it, last week’s deal avoiding a vote on the nuclear option left no one very happy: The GOP gave up the one thing it was looking for � an unconditional end to judicial filibusters. And Senate Democrats must now adhere to a new and opaque standard � “extraordinary circumstances” � that, if the GOP feels it is being misinterpreted, could lead the Senate straight back into a legislative morass. “It’s very clearly definable,” argued former Senate Majority Leader Trent Lott (R-Miss.) last week, then added with a smile, as if to make the point, “although it’s a nebulous term.” With the prospect of a vacancy opening up on the Supreme Court as early as next month, the challenge for Democrats and the liberal interest groups who support them will be finding a way to object to a potential nominee under the guise of the new standard, without setting off a retaliatory attack that will dismantle the filibuster � still perhaps the best leverage the Democrats have. Among the four most widely discussed potential high court nominees � U.S. Court of Appeals Judges J. Michael Luttig of the 4th Circuit, John Roberts Jr. of the D.C. Circuit, and Michael McConnell of the 10th Circuit, and Attorney General Alberto Gonzales � all have past statements and court rulings that, liberal interest groups say, could arguably meet the new, elevated filibuster threshold. At least three other judges and one senator are also considered potential Supreme Court candidates: Samuel Alito Jr. of the 3rd Circuit, Edith Clement of the 5th Circuit, Texas District Judge Ricardo Hinojosa, and freshman Sen. John Cornyn (R-Texas), a former Texas Supreme Court justice. Already, battle lines are forming over the interpretation of “exceptional circumstances,” and whether it does, in fact, permit the filibustering of candidates for their ideological views alone. Lott, for one, doesn’t think so. “It’s not because you think these judges are too conservative,” he said last week. “We elect a conservative president, the odds are we’re going to get conservative judges.” Republicans point to the fact that Democrats agreed to the new standard while letting through for a vote such ideological firebrands as California Supreme Court Justice Janice Rogers Brown, implying that she wouldn’t meet the test of an extraordinary circumstance. But Democrats disagree, saying the Supreme Court is different. “The fact that someone may or may not have voted for Janice Rogers Brown does not mean someone with identical ideology would not be opposed,” says former Senate Judiciary Committee Chief Counsel Mark Gitenstein, partner at Mayer, Brown, Rowe & Maw. In addition, Democrats argue the agreement explicitly allows them to filibuster William Myers III, a nominee to the 9th Circuit who is clearly less of an ideological maverick than Brown. POTENTIAL ROADBLOCKS A great confirmation hearing, of course, can help minimize the impact of an awkward decision or impolitic article. “Do they produce documents? Do they stonewall?” asks People for the American Way’s Elliot Mincberg. “Let’s see what happens in [the Senate Judiciary] committee. Let’s see what kinds of answers we get,” adds Mincberg, a veteran of nomination battles. “There are certain atmospherics created with a nominee.” For example, McConnell, despite 17 years as a law professor and reams of controversial writings, aced his 2002 appeals court confirmation hearing because he appeared forthright. “He was engaged,” recalls a Senate Democratic staffer. “He heard what the senators were saying, and he was able to explain in an abstract way a point of law without showing how he would rule.” But that doesn’t mean McConnell would have an easy time if he is nominated to the high court. A former assistant solicitor general in the Reagan Justice Department, he was highly critical of the high court ruling in Bob Jones University v. United States, the 1983 case that determined that the Internal Revenue Service could revoke the charitable tax-exempt status of a private university for discrimination in banning interracial dating among its students. “The striking thing is that McConnell has criticized by our count about a dozen significant Supreme Court decisions on civil rights and civil liberties,” says Mincberg, whose group has been critical of McConnell, Roberts, and Luttig. Senators so inclined might find extraordinary circumstances in Roberts’ comments while he was principal deputy solicitor general in George H.W. Bush’s DOJ, working for then-Solicitor General Kenneth Starr. Arguing the constitutionality of Rust v. Sullivan, which invoked a gag rule in talking about abortion for family planning clinics receiving federal funding, Roberts took what Blake Cornish, an attorney with NARAL Pro-Choice America, says was essentially a First Amendment free speech case, and gratuitously lit into Roe v. Wade. “The court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting pre-natal human life throughout pregnancy find no support in text, structure or history of the constitution,” Roberts wrote. While Roberts has been on the bench two years and McConnell about six months longer, Luttig has been an appellate judge for nearly 15 years. Though widely praised for his intellect, his views on congressional authority have raised the ire of his fellow judges, most particularly in Gibbs v. Babbitt, which challenged the constitutionality of a Fish and Wildlife Service regulation that limited the killing of red wolves on private land. In a dissent, Luttig saw it as an overreaching federal regulation. “There can be no doubt about the implications of the dissenting opinion,” wrote Chief Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit, who also has been mentioned as a possible high court nominee. “Our dissenting colleague would rework the relationship between the judiciary and its coordinate branches.” Pepperdine University School of Law professor Douglas Kmiec, a former Ronald Reagan and George H.W. Bush Justice Department official, says if the White House is seeking a filibuster-proof nominee, it may want to look to the 3rd Circuit’s Alito, who, notes Kmiec, “is so circumspect, he writes so carefully. . . . [I]t would be very difficult for Democrats to make the argument that he triggers the exception.” ALM Supreme Court correspondent Tony Mauro contributed to this report. T.R. Goldman can be contacted at [email protected].

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