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For all the Democrats wondering what to do the next time Republican senators threaten to launch the “nuclear option” and eliminate the Democrats’ ability to block judicial nominees, here’s a thought: Let them. Maybe the bomb drops this fall, if the Senate tries to vote on some of President George W. Bush’s most controversial nominees. (True to form, Bush last week renamed the five candidates whose nominations had died with the August recess.) Maybe the bomb drops after the November elections, when the Senate gets back to work filling vacancies on the federal bench. Either way, it’s time to face facts: The Republicans have won the judicial-nominations war, and salvaging the filibuster won’t change that. More important, if the Democrats are lucky, they’ll win back the Senate in November. If they’re luckier, they’ll hold it and also win back the White House in 2008. When they do, the last thing they’ll want is an obstructionist Republican minority torpedoing their judicial picks, yet it won’t be easy to attack the very practice that they’ve so vehemently defended. Better to let the Republicans kill it now. YES, 98 PERCENT There’s no question that the Bush administration has orchestrated an impressively executed campaign to install its nominees on the bench. It pulled this off with single-minded dedication, clever tactics, and ruthlessness that should make Donald Rumsfeld jealous. Never mind the statistical comparisons with Bill Clinton’s record, or Ronald Reagan’s, or Franklin Roosevelt’s. What matters is that the Senate Democrats made opposing Bush’s judicial nominees a signature issue, and they failed miserably. The filibuster didn’t come close to saving them. So far, the Senate has confirmed the overwhelming majority of Bush’s nominees — about 98 percent, according to the liberal People for the American Way. To be sure, the bulk of those appointments did not concern the Democrats. They were “noncontroversial,” in the jargon of judicial nominations. But many of the nominees triggered intense controversy: Janice Rogers Brown, Priscilla Owen, Brett Kavanaugh, William Pryor Jr., Jay Bybee, J. Leon Holmes, and Diane Sykes, to name a few. Whatever one thinks of the individuals themselves, there’s no dispute that the Democrats hit them hard. Sen. Edward Kennedy (Mass.) called Kavanaugh “a partisan political operator, not a litigator.” Sen. Dianne Feinstein (Calif.) mused in reference to Holmes, “As a woman, how can I possibly vote for someone to go on to a federal district court who believes women should be subordinate to men?” Senate Minority Leader Harry Reid (Nev.) said, “Janice Rogers Brown is President Bush’s most objectionable nominee. But I want to be clear: On the critical issue of civil rights, William Pryor holds views that are equally offensive.” And Sen. Charles Schumer (N.Y.) charged, “There is no question that when you look up �judicial activist’ in the dictionary, you see a picture of Priscilla Owen.” Them’s fighting words. But after the dust settled, the Bush administration had the best of all possible comebacks — the sound of these nominees uttering their judicial oaths of office. Bush’s two picks for the most important bench, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., also beat the Democrats’ opposition. Yes, the Democrats’ pressure led a few nominees to bow out: Miguel Estrada, Charles Pickering, Henry Saad, Carolyn Kuhl, and Claude Allen. And the Democrats managed to stall some nominees for a time. But the Bush administration didn’t let failing one year keep it from succeeding the next. The White House sent back the names of several nominees, including Pryor, Richard Griffin, and David McKeague, again and again until the Senate confirmed them. That means that Bush’s overall rate of success in confirming his nominees is actually higher than his rate of success in a given Congress, because rejected nominees could and repeatedly did make it through during a later round. The battle, of course, is not over, even for this year. Conventional wisdom says that judicial nominations slow down in an election year. Partisan pressures run too high, and it’s too easy for just a few dozen senators in the minority to shore up their political base by threatening to filibuster. Traditionally, only noncontroversial nominees get through this late in the cycle. So we should have already seen the end of this year’s combat. But with Bush’s poll numbers stuck so low, and Republicans generally facing discontent in the middle over Iraq and on the right over immigration, a final nomination brawl might be just the thing to shore up the base before Election Day. IN THE LINEOF FIRE Which brings us back to the nuclear option and those five stalled nominees. If there’s no filibuster, of course, the Republicans can OK a few of them, which might help assuage right-wing groups. But Democrats have made clear that they’re going to treat these nominees as controversial. The five include Terrence Boyle, nominated for the U.S. Court of Appeals for the 4th Circuit, whom Democrats have opposed in part for deciding cases involving companies in which he owned stock, and William Myers III, nominated to the 9th Circuit, who has raised liberal hackles over whether he respects environmental laws. Michael Wallace, nominated to the 5th Circuit, received a unanimous “not qualified” rating from the American Bar Association, in part because of alleged racial bias. And N. Randy Smith of Idaho has been named to a 9th Circuit seat that arguably should go to a Californian. Leading the pack is William Haynes II, the Pentagon’s general counsel since 2001. The Haynes nomination to the 4th Circuit especially galls Democrats because they didn’t block the nomination of another Bush official who played a key role in formulating the war on terror, Jay Bybee, now on the 9th Circuit. During Bybee’s hearings, the administration refused to show the Senate much of the work he did at the Justice Department. So liberals were apoplectic when, after Bybee’s confirmation, a memo was leaked in which his legal interpretation set the bar for torture at practices that cause death or organ failure. Democrats aren’t keen to let the same thing happen again. At the July hearing for Haynes (his second one — the first was in November 2003), Sen. Patrick Leahy (Vt.) made a point of mentioning the Bybee memo. And Kennedy more broadly summed up the case against the nominee: “Time and time again . . . Mr. Haynes has displayed a shocking failure of legal and moral leadership. . . . It is astounding that the administration would continue to press his nomination, even though the subordinates who have followed the policies he authorized have gone to prison.” Not surprisingly, Reid has threatened a filibuster. If they go ahead with their threat, and if the self-appointed moderates in the so-called Gang of 14 don’t give the green light to filibustering any of these nominees, then the Republicans have sworn to go nuclear. If that happens, the Democrats will probably try to use procedural ploys to shut down the Senate — although it’s unlikely they’ll have the political muscle, or the legal footing, to carry through with their threat. THE BIG PICTURE But that’s OK. From the Democrats’ perspective, what’s the worst that Republicans can do over the next two years, even if they do keep their Senate majority? Bush has already established a critical mass of conservative judges on the bench. Adding a few more will hardly change the calculus. The real game lies with the next president. It’s conceivable that, helped by a good tail wind in 2008, the Democrats might control both the Senate and the White House at the end of this decade. Then they might be able to balance the scales of justice (so to speak) by appointing a crowd of moderates and liberals to the federal bench. But they’ll only be able to do that if Republicans can’t gum up the works with their own filibusters. Bear in mind that Democrats have never shown the same political will as Republicans when it comes to appointing judicial nominees. A President Hillary Clinton/Joseph Biden/John Edwards/ Barack Obama won’t mimic Bush’s refusal to compromise on judges. Besides, it’s just not reasonable to expect a Democratic president, backed by a narrow congressional majority, to spend political capital in a judicial war when there are so many real wars to worry about these days. It is too late to beat Republicans in the current nominations fight. But it’s not too late to turn the tables if the Democrats win the White House in a couple of years. They just have to steal a different page from the president’s playbook. When they hear that Republicans are going to go nuclear over judges, the Democrats should grin and say, “Bring it on.”
Evan P. Schultz is an associate in the D.C. office of Mayer, Brown, Rowe & Maw. This article solely expresses his own views, and not those of his firm or its clients. He is a former editor at Legal Times and a former Democratic counsel for the Senate Judiciary Committee.

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