Community Rights Counsel Community Rights Counsel Community Rights Counsel Community Rights Counsel

About CRC

Legal Resources

Community Rights Report Newsletter

Support Us


Redefining Federalism

Warming Law Blog

Community Rights Counsel
1301 Connecticut Avenue, NW, Suite 502
Washington, DC 20036
Phone: 202-296-6889
Fax: 202-296-6895

CRC In The News

Senate Deal on Judges May Help Environment

May 25, 2005
Douglas T. Kendall, Guest Writer

Editor's note: In light of Monday night's extraordinary agreement in which 14 Senators staved off Senator Frist's threatened "nuclear" option to force an end to Senate filibusters over judicial nominees, BushGreenwatch asked Doug Kendall, executive director of Community Rights Counsel (CRC), to offer a brief perspective of what the agreement means in terms of environmental protection. CRC teamed with Earthjustice to lead "Judging the Environment," a campaign to highlight the environmental stakes in the battle over judicial nominations. His commentary follows:

In the heat of a battle, a deal can look like a defeat. This is particularly true in a battle joined over a dirty parliamentary trick like the so-called Nuclear Option, in which Senator Bill Frist proposed to break Senate rules in order to eliminate the use of judicial nominations filibusters.

And any deal that may result in confirmation of judges like Janice Rogers Brown, who will wreak havoc on environmental laws for the rest of her life if confirmed to the DC Circuit, can be embraced only as a compromise.

But environmentalists appear to have cemented a landmark victory in the so-called "Gang of 14" deal, reached by a bipartisan coalition of Senators: namely,the defeat of William Myers, a long-time grazing and mining lobbyist nominated for the Ninth Circuit Court of Appeals. If the Democratic filibuster on Myers holds, as it should, this will mark the first time in history a judicial nominee has been defeated primarily on environmental grounds.

There are other consolations. First and foremost, the deal takes the nuclear option off the table, stating "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress."

While the Democrats agreed, in exchange, not to filibuster nominees absent "extraordinary circumstances," the existence of those circumstances is left to the "discretion and judgment" of each signatory. Under this deal, Senate Democrats may continue to use the filibuster as a way of discouraging or blocking nominees that represent the nominations equivalent of a thumb in the Democrats' eyes.

Even more important, perhaps, is a new provision that was added at the last minute at the behest of Senators Robert Byrd and John Warner. It is worth quoting in full:

We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
As this provision illustrates, President Bush could have avoided this war over his judicial nominations simply by taking more to heart his responsibility to make judicial appointments with "the advice and consent" of the U.S. Senate.

The fact that seven Republicans signed a deal with this paragraph included is a clear rebuke to President Bush for his unilateral and overtly-ideological judicial selections. This paragraph gives some meaning to the phrase "extraordinary circumstances": if the President picks a controversial Supreme Court nominee without any consultation with Democrats, they can plainly argue extraordinary circumstances exist.

The downsides of the Gang of 14's deal are real. They could lead to the confirmation of three of President Bush's most disturbing nominees from an environmental perspective -- Brown, William Pryor, and Priscilla Owen -- and it limits future filibusters to cases that qualify under the still ambiguous "extraordinary circumstances" test.

But keep one fact in mind: absolute defeat was just as likely in a nuclear option vote as absolute victory. In that light, the Gang of 14 deal starts looking pretty good.


Back to CRC Home

If you have questions or comments about this website or
Community Rights Counsel email us!

2005 Community Rights Counsel. All rights reserved.