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It was a year in which the phrase “extraordinary circumstances” became part of the Senate vocabulary, a purposefully ambiguous term that now sets the standard for the filibustering of judicial nominees. But it was a year of genuinely extraordinary circumstances, as well. There were a remarkable four separate Supreme Court nominations — if you count John Roberts Jr. twice. He was first nominated on July 19 as an associate justice, then picked for the chief justice slot after the death of William Rehnquist. Then came the debacle of Harriet Miers, and finally, Samuel Alito Jr., whose confirmation hearings begin next month. The Miers nomination, and particularly how it imploded, was extraordinary on its own. An ill-equipped candidate whose chief qualifications appeared to be her gender, her evangelicalism, and her friendship with President George W. Bush, Miers was savaged by the president’s conservative base. The Oct. 3 nomination lasted three tumultuous and publicly humiliating weeks. Another equally public drama unfolded earlier in the year. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), who had to bow and scrape his way into the chairmanship after an off-the-cuff remark he made about abortion offended social conservatives, was diagnosed with Hodgkin’s disease in February. He underwent chemotherapy, lost his hair, grew it back, and continued to lead the committee. “I participated in the debate as to whether I should wear a cap, a toupee, or shave my head and be a sex symbol,” Specter says now, sitting in his seventh-floor office, a slight grin creasing his face. “And I just decided to be au naturel. I just went through it all, played squash, and came and fought tigers. People are giving me a lot of undue credit for going to work.”
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In the spring, with the Senate heading into what seemed a certain conflagration over judicial filibusters, 14 moderate senators — seven from each party — forged a two-page agreement that swore off using the filibuster absent “extraordinary circumstances.” The crisis was immediately defused. More important, as associate Senate historian Donald Ritchie notes, the Senate saved itself by returning to its roots. “Through most of the 20th century there were very few occasions of straight party-line votes,” says Ritchie. “House rules favor the majority; the Senate by nature has to be more bipartisan.” Still, regardless of the temporary truce, the battle over judicial nominations to both the appeals courts and the Supreme Court continued to ratchet up. Liberal interest groups that once had the field to themselves can now count on sophisticated conservative opponents with ties to the White House, and a level of contention that resembles an electoral campaign. Unfortunately, says Indiana University law professor Charles Geyh, that’s no way to determine someone’s judicial qualifications. “They’ve really reframed the debate about these guys into what issues will play to the public, judges being nothing but a package of ideological alignments,” says Geyh. “Now to generate any interest in Supreme Court appointments, you have to talk about them in terms of them acting like legislators.” Not only did the debate over judicial nominations become more shrill, it also expanded well beyond the usual roster of interest groups: Environmentalists, Native Americans, the labor movement, the disabled community, seniors, big business, and a slew of think tanks jumped into the fray. “These people had never played as active a role in nominations,” says Douglas Kendall, the executive director of the Community Rights Counsel, which analyzes the environmental record of judicial nominees. “They are now all very much engaged in the nominations issue.” The National Association of Manufacturers, for example, endorsed Alito on Dec. 13 and Roberts before him, the only times it’s taken a stance on judicial candidates. “We’ve been actively lobbying the executive and legislative branches,” says NAM President John Engler. “But we’ve never lobbied the judiciary — unless you count being a defendant in court. We’re very keen on the idea that statutes should be interpreted as they are written.” FINGERS ON THE BUTTON The opening salvo over judicial nominations in 2005 started in 2004, with a notice on the White House Web site two days before Christmas that Bush intended to renominate 12 contentious appeals court candidates, seven of whom had been previously filibustered by Democrats. Democrats saw the move as a blatant and wholly unnecessary thumb in the eye. The Republican perspective was just the opposite: If the candidates had merited a nomination in the previous Congress, how could the president fail to deliver them up again? If he didn’t, wouldn’t that be a clear admission that the Democrats’ filibuster strategy had worked? Likewise, if Democrats had filibustered a nominee in the last Congress, how could they not filibuster that same candidate again? Even before 2005 began, the conditions necessary for a legislative cataclysm were brewing. Republicans had been talking since 2003 about a controversial parliamentary procedure, popularly known as the “nuclear option,” that would require only 51 votes to ban judicial filibusters. As the 109th Congress started in January with 55 Republican senators — a net gain of four for the GOP — the rhetoric heated up swiftly, and Senate Majority Leader Bill Frist (R-Tenn.) backed himself into a very unpleasant corner. “There was a collision course in the sense that Frist could not back off from bringing [the nuclear option] onto the floor,” notes American Enterprise Institute congressional scholar Norman Ornstein. “Whether they would have gotten 51 votes, we just don’t know.” Neither, it appears, did Frist or Senate Minority Leader Harry Reid (D-Nev.). The risk, of course, was that if the Republican gambit was successful, Democrats had credibly threatened to shut the Senate down. “The minority only needs a few people to tie the Senate into knots,” Ornstein adds. Enter the Gang of 14, whose May 23 truce agreement abruptly ended the crisis. The seven Democrats retained the right to use the filibuster, but only under “extraordinary circumstances.” Without those seven Democratic votes, the mathematics of the Senate dictated that the party could never muster the 41 votes necessary to sustain a filibuster. Conversely, without the seven Republican votes, Frist could never get the 51 votes he would need to pass the nuclear option to ban judicial filibusters entirely. “In my opinion and the opinion of my six other colleagues, the bar is higher for the use of filibusters,” says Nebraska Democrat Sen. Ben Nelson. “It raised it to the level where it should be, and not a tactic where it is used routinely,” he says. The agreement “paved the way to get the energy bill done and the highway bill done,” adds Nelson, referring to two major pieces of legislation the Senate was able to pass late this year. “And I don’t know whether the Roberts nomination would have been as low on partisanship as it was, either.” True or not, the deal certainly lowered the chamber’s temperature overnight. Says Specter: “I think it is a significant restraining factor on the filibuster of judges. We had 14 senators who stood up and said we’re not going to follow the party line. Besides that, I think the party leaders liked it. I went to a couple of meetings and at one of them both Reid and Frist were there. “If this was a coup d’etat,” Specter notes, “the rulers were participating — they were aiders and abettors.” And as is the nature of any such showdown, both sides have been arguing ever since who came out on top. While Democrats can say they beat back conservative efforts to destroy the judicial filibuster, leaving it as an option to use against a future Supreme Court nominee, the cost was high: an agreement to let three of Bush’s most conservative appellate court nominees, Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit, Priscilla Owen on the 5th Circuit, and William Pryor on the 11th Circuit — all previously filibustered — through without a fight. “That agreement was a huge defeat for the right wing,” says Reid’s senior counsel, Ronald Weich. “They wanted to change the rules of the Senate, and the Senate said no. As a result of that agreement, the Senate Democrats are still relevant, and the president needs to take account of our views before he sends up a nomination. “We weren’t happy to see those three individuals confirmed,” adds Weich, “but the long-term benefits outweigh the harm.” Retorts a senior Republican Senate leadership aide: “We got our big three, and we got Roberts and the Alito nomination. What have they accomplished?” POLITICAL LIFE INSURANCE? Nobody can predict whether the Senate’s 44 Democrats and single Independent will ultimately filibuster Alito, whose hearings begin Jan. 9, or whether he will be confirmed or defeated in a straight up-or-down vote. At this stage, everything depends on Alito’s testimony before the 18-member Senate Judiciary Committee and on how thoroughly he convinces Democrats and moderate Republicans that his personal views will not unduly influence his jurisprudence. Although liberal senators, like New York Democrat Charles Schumer, argue that a candidate’s ideology can be sufficient to keep them off the bench, a majority of members probably agree with Nelson, the Democrat most likely at this stage to vote for Alito. “Ideology is not as important as whether the nominee will take that ideology to the bench and apply it to cases, as opposed to checking one’s ideology [at the courthouse door] and applying the law,” says Nelson, who served two terms as governor of Nebraska before winning his Senate seat in 2000. “I appointed the Nebraska Supreme Court and the entire Court of Appeals and almost half the judges in Nebraska. I’ve got my own methods, my own version of a lie detector, to satisfy myself about whether this person wants to be an adjudicator, not a legislator.” In many ways the model will be Roberts, whose polished testimony and unflappable demeanor will probably stand as a touchstone for nominees for years, if not decades, to come. “Roberts really was a candidate who professed to follow the law,” notes Geyh, the Indiana University law professor, whose book, When Courts and Congress Collide: The Struggle for Control of America’s Judicial System, will be published next year. “You felt he might walk the walk even if he was a conservative.” Besides trying to divine a nominee’s judicial soul, says Specter, confirmation hearings also force a nominee to lay out broad principles in a public forum. Take Roberts, who at his confirmation hearings in September said that overruling a precedent was a “jolt” to the legal system and “inconsistent with principles of stability.” “It will be pretty hard for Chief Justice Roberts to give a jolt, having been so emphatic that you shouldn’t give jolts to constitutional law,” Specter notes. Unlike 2003 and 2004, when Senate Democrats successfully filibustered 10 circuit court judges, there were no judicial filibusters this year. In part that was due to the fact that from July on, the committee was consumed with Supreme Court nominations. It was also because three of the most contentious judges were approved under the Gang of 14 deal. Indeed, there were only two new appeals court nominations this year, James Payne for the 10th Circuit and Norman Smith for the 9th Circuit. That doesn’t mean the judge wars have ended. Potential fights remain over five previously nominated circuit court judges who still haven’t been confirmed. If anything, says Ornstein, the battles will only grow more intense. Ever murkier congressional statutes are forcing circuit courts to be more interpretive, he argues, while fewer Supreme Court rulings mean that circuit court judgments are less likely to be challenged. “Your party may not win regularly over the next 25 years, but if you retain control of Congress, and you have the opportunity to put a bunch of judges on the bench, you can help extend your policies anyway.”

T.R. Goldman can be contacted at [email protected].

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