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Late in the evening on May 23, seven Republican and seven Democratic senators, who are politically moderate, reached an agreement that could help defuse the bitter controversy over President George W. Bush’s nominees to the federal appellate bench. Their 11th-hour compromise prevented detonation of the “nuclear option.” That procedure would have allowed a simple majority Senate vote to proscribe Democrats’ filibusters against a small number of Bush nominees. The solution was good for the Senate and may be good for the nation. The understanding includes several major constituents. First, the Republican and Democratic signatories agreed to up-or-down votes on three of Bush’s present appellate nominees. They are California Supreme Court Justice Janice Rogers Brown for the U.S. Circuit Court for the District of Columbia, former Alabama Attorney General William Pryor for the 11th Circuit and Texas Supreme Court Justice Priscilla Owen for the 5th Circuit. The Senate promptly confirmed Owen on May 25 on a 56-43 vote, after she had waited four years. The Senate then confirmed Brown on June 8, 56-43, and Pryor on June 9, 53-45. Signatories expressly made no commitments on current nominees William Myers for the 9th Circuit or Henry Saad for the 6th Circuit . The signatories also left unclear the disposition of other nominees. They include Terrence Boyle and William Haynes II for the 4th Circuit as well as Judge Susan Bieke Neilson for the 6th Circuit. However, the Senate confirmed Richard Griffin and David McKeague, two additional 6th Circuit nominees, without opposition on June 9. Second, as to future nominees, the signatories agreed to exercise their advice and consent responsibilities in good faith. Signatories would only filibuster nominees in extraordinary circumstances, a situation that all 14 signatories would ascertain. Many observers have vigorously debated the term’s definition. For example, Republicans have contended that because Pryor, Brown and Owen received up-or-down votes, one of the three should receive a Supreme Court nomination or that only nominees who are more radical than the three would be extraordinary. Democrats counter that extraordinary circumstances applies only to future nominees, as the agreement explicitly states, and that nominations to the Supreme Court differ from ones to the appeals courts. Third, signatories agreed to oppose the nuclear option’s employment during the 109th Congress, which ends in late 2006, unless the agreement is not honored. Fourth, signatories urged the president to consult with Republican and Democratic senators before submitting nominees for Senate consideration. A fair resolution This memorandum of understanding is fair. Republicans will receive votes on practically all of the current nominees, some of whom are quite controversial. Democrats will secure Senate floor debate in which they can attempt to convince moderate Republicans that they should vote against sufficiently controversial nominees. The nuclear option would be defused and its use suspended until a later Senate-if the alternative is implemented at all. The option’s invocation would have stopped or delayed important business, and it would have eroded the power of the Senate minority-which represents a majority of American voters-to express its perspectives. The suggestion that the president consult, grounded in the Constitution’s “advice” language, would also reduce divisiveness over the next Supreme Court opening. If Bush informally broached potential nominees, as President Bill Clinton did with justices Ruth Bader Ginsburg and Stephen Breyer, the confirmation process would function more smoothly. In the final analysis, the recent accord will preserve Senate traditions, while it will hopefully restore a measure of civility to current discourse and public respect for the Senate, the executive and the courts. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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