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.